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Trinity College Dublin

Contributions to

Political Reform web forum

 

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Political Reform web forum

From the ‘About’ page:

"This web forum has been set up by members of the political science departments of Irish universities under the aegis of the Political Studies Association of Ireland (PSAI). The editors are: David Farrell, Eoin O’Malley, Elaine Byrne and Jane Suiter. (From time to time, joint contributions are posted as ‘Editor’.)

The purpose of the forum is to provide up-to-date analysis of contemporary political events and to encourage moderated comment on all issues relating to political reform broadly conceived. The internet is a tool for both making these debates public and facilitating participation from those who usually do not have an opportunity to voice their opinions."

The site can be found at http://politicalreform.ie/

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MG page on Irish electoral system reform:

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Posted 27 May 2015

On the same-sex marriage and presidential age referendums

The expectation was that the same-sex marriage referendum would deliver a comfortable Yes and the vote on reducing the minimum age for the president an equally decisive No, and that’s just how it worked out. The latter achieved the distinction of delivering the lowest Yes vote (only 27 per cent) of any of the 39 referendums held in this country to date but will otherwise be remembered only for being entirely forgettable, and the puzzle for future historians will be to work out how it ever got onto the ballot paper, given that no-one seemed sufficiently motivated to put together a leaflet or a poster about it, let alone canvass for it.

The same-sex marriage referendum, in contrast, evidently reached parts of the body politic that referendum proposals don’t usually get to. Turnout was just over 60 per cent, the highest since the divorce referendum of November 1995, implying that the issue at stake seemed to the electorate to be more important than the 1998 Good Friday Agreement, the Nice and Lisbon Treaties, the election of a president in 1997 and 2011, and even, remarkable as it may seem, the possible abolition of the Seanad.

The spectacle of voters, especially youthful ones, travelling back from abroad to cast a vote that was highly unlikely to make a difference to the outcome suggests that many on both sides regarded their vote as being expressive rather than instrumental and saw something greater at stake than merely the difference between civil partnership and same-sex marriage. For some Yes voters, a statement about equality in Irish society and, perhaps, almost an act of contrition, an opportunity to expunge a residual sense of guilt at the toleration of the long existence on the statute book of laws that now seem bizarre and discriminatory, given that the decriminalisation of homosexuality (a phrase that already has an old-fashioned ring to it) occurred only in 1993. For some No voters, a doomed but in their eyes valiant attempt to stop the apparently relentless slide into a society defined by moral relativism, where ‘anything goes’ and abortion on demand is the order of the day.

Did we see the emergence of a new voting pattern in Irish politics or did the familiar liberal–conservative divide raise its head once more? Eyeballing the data certainly suggests the latter. Long-standing liberal bastions on the southside of Dublin were once again to the fore in voting Yes, while the ten constituencies with a Yes vote lower than 55 per cent were the traditionally most conservative ones, in the west and north-west. Dublin voted 71–29 in favour while in the rest of the country it was a rather closer 59–41.

A more systematic analysis confirms this. Comparing the percentage Yes votes on 22 May with those cast in the divorce referendum of 1995 produces a Pearson correlation (r) of 0.87, a remarkably high figure given the twenty-year time difference. (Constituency boundaries have changed since 1995, but by amalgamations we can identify 39 more or less comparable units.) The largest ‘swings to liberalism’ were in traditionally conservative areas – Limerick West with a shift of 27 per cent, Cork NW and Cork E head the list – while the smallest swings were in relatively liberal areas (Dublin NE, Dun Laoghaire and Meath all saw the liberal vote grow by less than 5 per cent compared with 1995.) Thus the Dublin-versus-the-rest difference narrowed in 2015: in 1995 the Dublin margin was 64–36 compared with 45–55 in the rest of country, a 19-point difference, but in the 2015 vote, as mentioned above, the difference was just 12 points. In short, votes were cast very much along the established liberal–conservative dimension, with the liberal side now decidedly in the ascendant.

Comparing the referendum votes with the way votes were cast at the 2011 general election confirms a strong relationship (0.77) with Labour support across the 43 constituencies. Yes support correlates negatively with support for the other three main parties (-0.47 with FF support, -0.39 with FG support and -0.26 with SF support), even though all of those parties were, at leadership level at least, entirely in favour of the proposal. (A negative correlation does not necessarily mean that individual supporters of these parties tended to vote No; it merely indicates that where those parties were stronger in 2011, the No vote tended to be higher in 2015.)

Certainly Labour, of all the parties, has the most reason to feel encouraged by the outcome, given that it was Labour that insisted that the issue be on the agenda of the Constitutional Convention and went on to be the most committed promoter of the proposal. This will not necessarily translate directly into additional support for the party; as Harry McGee pointed out in the Irish Times, the number of valid votes cast in the referendum in Carlow–Kilkenny was over 1,000 more than in the by-election on the same day, in which Labour fared poorly. Even so, the outcome has put a spring in the step of Labour members, providing reassurance that their party has made a difference, a boost in morale that may yet increase their ability to persuade voters that they are a party worth supporting, and it will have convinced the party strategists that a manifesto pledge to put before the people a referendum on removing the eighth (the ‘pro-life’) amendment will be well received among potential Labour voters.

Fine Gael handled the issue well, sufficiently in favour to assure its urban supporters that the liberalism of Garret FitzGerald remains significant within the party but not so zealous in rural areas as to cause its more conservative supporters to fear that they are being forgotten. Sinn Féin was on the winning side, but the party’s stance on moral issues is really not in any way central to its electoral appeal.

For Fianna Fáil, everything seemed to have gone well, with the Carlow–Kilkenny by-election victory as a bonus, until the dramatic resignation on 25 May of its most prominent liberal, Senator Averil Power, citing the party’s lack of commitment, or pusillanimity as she saw it, in the referendum as the main factor in her decision. This is reminiscent of events of twenty years ago. In 1995, the FF leadership – Bertie Ahern as leader and Mary O’Rourke as deputy leader – held a press conference to declare that the party was calling for a Yes vote in the second divorce referendum, which was the start of Fianna Fáil’s campaign on that occasion and pretty much the end of it too. No-one doubted that the bulk of the parliamentary party and the membership was decidedly lukewarm about, if not indeed opposed to, legalising divorce, and anecdotally it was said that in many areas FF members formed the backbone of the anti-divorce campaign. Yet as soon as the referendum was over the party reunited around what cynics saw as its core value, namely getting back into government, and the party duly returned to office at the next general election eighteen months later. That will not be so easy this time. For a party that seems in need of a unique selling point – not a problem when starting from a base of 40 per cent of the votes, but a major problem when starting from 20 per cent – the existence of a sizeable bloc of the electorate, namely the 38 per cent who voted No, who currently feel unrepresented by any political party must offer a tempting, albeit probably shrinking, electoral market.

The committed and enthusiastic Yes organisation became a formidable force by the end of the campaign, but in terms of the future it’s not clear that anything more can be built upon it. The next ‘moral issue’ referendum is likely to be on abortion, which, involving as it does a clash of claimed rights (a woman’s right to choose versus the right to life of the unborn) that was absent from the same-sex marriage debate, in which it was rather hard to see how anyone’s rights would be infringed by the passing of the proposal, will not generate the same level of unqualified positivity that the goal of ‘Equality’, which is how the Yes side framed the issue, did in 2015.

As for the No side, it must be clear that the world is changing around it, and the reversing of the pre-emptive strike of 1983, the ‘pro-life amendment’ that was intended to prevent the legislature from legalising abortion for generations to come even though at that time scarcely anyone was advocating such legalisation, is likely within ten years at most. The No side has sincere concerns, yet its instinctive opposition to any kind of liberal change, even when it is difficult to find reasons to oppose the specific change proposed (point 5 in an Iona Institute leaflet listing ‘Five Reasons to Vote No’ was ‘No other country has ever voted for this’, which may qualify for a prize as the weakest argument ever put forward in a referendum campaign), as well as its record of giving dire warnings about the likely consequences, which never quite materialise in reality, of every liberalising step, inevitably risk giving a mind-numbing predictability to its message. The maxim of ‘choose your battles’ comes to mind, a point that the Catholic Church, or at least Diarmuid Martin, is evidently also considering.

The defeat of the 1986 divorce referendum was seen at the time as the last nail in the coffin of the 1982–87 Fine Gael–Labour coalition government, a morale-sapping reverse that presaged its heavy defeat in the election eight months later. These are different times, yet last week’s result can only have reinforced a growing sense within the government parties that they might yet, against the odds, just possibly secure re-election for a second term.

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Posted 1 October 2013

 

Does the referendum on the Court of Appeal contain any hidden dangers?

 

Most of the debate over the 4 October referendums has focused on the abolition of the Seanad, understandably enough, but there’s another referendum too: the 33rd amendment on the establishment of a Court of Appeal. Sometimes when there is more than one referendum on the same day, the ‘minor’ proposal is seen as uncontentious and passes without difficulty, but on other occasions its very lack of visibility can count against it, as when voters finally become aware of it some of them suspect that it is being deliberately kept quite as the political class is trying to smuggle something through without their noticing, so to speak. It may then take just one well-delivered blow to finish it off, as happened two years ago when the presidential election overshadowed the referendum on extending the powers of Oireachtas committees, and the intervention of the former Attorneys-General was enough to tilt the balance against it, even though after the event most voters seemed to favour the idea that it embodied and could no longer recall the arguments that had led them to vote No.

Could this happen with the referendum on the Court of Appeal? While there are aspects that are not entirely clear, it does not seem that there is anything that is likely to be seized upon by opponents and presented as dangerous to the citizen or the state. Indeed, while both the Bar Council and the Law Society are backing the proposal, no group has formed to oppose it. The rationale offered for the new court is that the Supreme Court is overloaded, with a waiting list of around four years before an appeal is heard. Perhaps, as some have argued, the Supreme Court could reduce the backlog by amending its working practices, but it would require something dramatic to eliminate such a backlog and, besides, the proposal is concerned with principle as well as workload. The Supreme Court hears a mishmash of cases, from an appeal against a conviction for fraud to a major constitutional case. More sensible, it is argued by the government, to establish a Court of Appeal to deal with most routine appeals, leaving the Supreme Court to concentrate on major cases that ‘involve a matter of general public importance’.

This goes some way towards moving the Irish judicial system away from the US model, where all sorts of cases can potentially reach the Supreme Court, and towards the standard European model, where a constitutional court, completely separate from the regular court system, hears cases where the constitutionality of legislation is at stake.

The proposals will not go this far, though. For one thing, the Supreme Court will by no means be separate from the rest of the court system. It may hear appeals from the new Court of Appeal if, again, the case concerns ‘a matter of general public importance’ or ‘the interests of justice’ require this (the decision as to whether a given case meets these rather subjective requirements is of course the Supreme Court’s alone), or direct from the High Court, bypassing the Court of Appeal, for essentially the same reasons. In the case of an appeal from a judgment of the High Court, it will be the Supreme Court itself that decides whether to accept jurisdiction or whether, as we can expect to happen in the great majority of cases, to pass the appeal to the Court of Appeal. The proposed amendments to the constitution do not spell out all of the detail but, rather, leave some matters to be settled by law, which leaves us somewhat in the dark as to the eventual, perhaps potentially slightly tangled, relationship between the High Court, the Court of Appeal and the Supreme Court.

In addition, another way in which these proposals do not amount to a separation between a Supreme Court focussed on constitutional cases and a Court of Appeal that deals with cases with no constitutional implications is that the Court of Appeal will have the power to hear appeals from the High Court as to whether an Act of the Oireachtas is constitutional. (The constitution, if amended by a Yes vote on 4 October, will state that no law can be passed to prevent this: schedule 3, part 2, section 4.2.) This seems to go somewhat against the principle of the division of labour, which would point to the gradual emergence of a Supreme Court whose members spend much of their time on cases with constitutional implications and a Court of Appeal that deals with cases without such implications. If the Court of Appeal too hears constitutional cases, as will be the situation, then the distinction between it and the Supreme Court seems to be primarily one of hierarchy rather than specialism. This will also mean that it will take longer than at present to get a definite decision on the constitutionality of a piece of legislation, as any such case may go through three courts instead of the current two.

Just as at present High Court judges may be promoted to the Supreme Court, in future High Court judges will be able to see two tiers of the judiciary above them and, presumably, will in many cases hope to be promoted to one or the other or, in the fullness of time, to both. This is again quite different from the pattern of European constitutional courts, whose members are not routinely recruited from the regular judiciary but tend to include, for example, legal academics. Moreover, members of constitutional courts are appointed for fixed and usually non-renewable terms of six to twelve years. Existing practice in this country, though, is that judges are practising barristers who may serve on the bench until they reach retirement age, and the current proposals do not contain any hint of a change here.

Removal of the ‘one judgment’ rule from Article 34.4.5 is in line with calls from various quarters over the years, most notably the Constitution Review Group (CRG) in its 1996 report. Although this has no real relation to the principle of establishing the Court of Appeal, if it is to be raised at all then it makes sense to include it as part of a reform package, as it is far too arcane to be put to the people as a stand-alone item. Some arguments for and against it were noted in a post here in July 2012. One perhaps anomalous aspect of this proposal is that whereas, as noted above, most European countries have a dedicated constitutional court and the introduction of the Court of Appeal might be seen as a step towards this European model, for the most part those European constitutional courts firmly apply the ‘one judgment’ rule, unlike the US Supreme Court. It is not surprising that the original proposal to relax the one judgment rule for presidential referrals (Article 26.2.2), a matter on which the CRG itself was undecided, has been allowed to lapse.

In the summer of 2012 the Minister for Justice also indicated the possibility of amending Article 34.3.3 (which states that the constitutionality of an Act upheld by the Supreme Court following a presidential referral can never again be challenged) and to make provision for judges to take a secular oath instead of the Christian oath currently prescribed for judges. These ideas seem to have sunk without trace, for the moment at least. Perhaps proposals along these lines will find a place amidst the flurry of referendums the government seems to have in mind for 2014 and 2015.

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Posted 3 September 2013

 

Would a reformed Seanad be the worst outcome of all?

 

Never in its history has the Seanad been the focus of so much attention. Is it a vital bastion of democracy without which governments would be able to trample all over everyone’s rights, or conversely an expensive anachronism draining resources that could make a huge difference elsewhere?

Probably neither. It does a little bit of good – it provides a venue where legislation might be scrutinised in a more reflective atmosphere than in the Dáil, though no-one seems to have attempted to quantify its impact. In an article in the Sunday Business Post of 1 September Senator Katherine Zappone writes that ‘members of the Seanad have tabled 529 amendments to 14 Bills that have been passed over the past two years’. That’s a bit cryptic, but even if it is saying that all 529 amendments have been passed, it leaves uncertain how many of these represented good ideas that Senators and no-one else thought of, and how many were government amendments that happened to be introduced in the Seanad rather than the Dáil. Senators also take part in Oireachtas committees, which pretty much everyone seems to agree should have a larger role than they do – but on the whole the committees, if given a more meaningful role in preparing legislation and scrutinising government, would function perfectly well without Senators.

On the debit side, it costs money, and this seems to be the main argument in the government’s case so far. However, whether this is of the order of the €20 million claimed by the government or the €7 million figure of Democracy Matters, it is a mere drop in the sum total of public expenditure. Against the cost of retaining it must be counted the cost of holding the referendum itself, which seems to be of the order of €20 million (answers, relating to the holding of the Lisbon Treaty referendums, by the Minister for Finance to written questions from Deputy Finian McGrath, 29 June 2011). And there is also a cost, harder to quantify, in the time that government ministers will spend between now and 4 October on this subject, when they could be working on the economy.

All of which might suggest that the Seanad is a body that does some good, though not a lot, and imposes a cost, though not a lot – not good enough to be worth saving, not bad enough to be worth abolishing. Perhaps it is hardly worth making it the focus of so much political activity.

However, a new and potentially alarming spectre has now arisen, that of a ‘reformed Seanad’. Opinion polls suggest that while in a straight choice between the status quo and abolition the latter would prevail, the idea of retain-and-reform is growing in appeal. Indeed, advocates of a No vote are at pains to emphasise that they do not want to preserve the Seanad as it is – a No vote, say Democracy Matters, ‘is the first step to a new Seanad’.

The reformed Seanad, as outlined by Democracy Matters, would be a directly elected body: elected not just by the current Dáil electorate but also by those in Northern Ireland who are eligible for Irish citizenship, by all Irish passport holders abroad, and by graduates of all third-level institutions (it’s unclear whether this would include non-Irish citizens, given that Irish citizens would already have a vote under one of the other headings).

What powers should this reformed Seanad have? The Quinn–Zappone draft bill is relatively modest in its proposals, suggesting roles such as scrutinising draft EU regulations and directives as well as statutory instruments, as well as ‘the power to inquire into the need for new legislation in certain areas’. Whether voters would bother turning out in significant numbers to choose the candidates whom they regard as best equipped to scrutinise draft EU regulations is doubtful, though. Far more likely that those elected would be aspiring TDs and ministers who would, as Senators, do whatever they thought most likely to secure their election to the Dáil, and that might not involve spending much time on scrutiny of draft EU legislation.

Others go further and would like to see the Seanad given more or less the same powers as the Dáil. Vincent Browne (Irish Times, 17 July 2013) argues that the lack of accountability in the current system could be addressed by ‘giving the Seanad the same powers as the Dáil, except the power to elect and unelect a government’. And Democracy Matters, on the front page of its web site, seems to see the reformed Seanad as being more powerful than the Dáil – indeed, the body to which the Dáil should in some way be answerable – stating that ‘A new and effective Seanad is critical to make the Dáil accountable to a body other than themselves’. It would also have significant legislative powers: ‘A reformed Seanad means new expertise and new legislation to underpin Ireland’s economic recovery’ (3 September 2013). The range of views on the composition and powers of any ‘reformed Seanad’ suggests that if the electorate votes No on 4 October, it would not be easy to reach swift agreement on what such a body should look like, and that in practice the current Seanad would be with us for some time.

Part of the motivation underpinning the idea of a directly-elected Seanad with pretty much all the powers of the Dáil no doubt comes from despair at the deficiencies in the Dáil’s ability to compel accountability from the government. It is indeed surprising that the government has not yet set out a definite statement of intent for Dáil reform, or preferably implemented such measures already; the kind of measures discussed in David Farrell’s post here in July. Given the ‘power grab’ theme that features in the No side’s campaign, a vague promise by the government to ‘look at’ meaningful reforms sometime in the future won’t suffice.

Even so, the idea of a strong Seanad, elected at a different time and by a different electorate than the Dáil, is unlikely to be a remedy for anything except gridlock. When the two houses disagree, whose will should prevail – that of the Dáil, or of the reformed Seanad? Looking around Europe the only examples of genuinely strong second chambers are to be found in Belgium (a manifestation of federalism), Romania (close to a presidential system), and Italy. The power of the Italian Senate is one of the main reasons why left-wing governments rarely last their full term and why the Italian system of governance is regarded as one of the least effective in Europe. If the only measures that can get through parliament are ones that can command majority support from two different houses, elected at different times by different electorates, which appears to be the Democracy Matters preferred option, then only lowest common denominator measures have much chance of making it through. It might help the case of advocates of a reformed Seanad if they could point to another country that operates the kind of model they favour.

The desire for a strong Seanad is an understandable, though surely mistaken, response to the reluctance of the government to move as far and as fast as it could in giving a more meaningful role to the Dáil, or of non-government TDs to wrest such a role from the government – a role that, while not enabling the opposition of the day to thwart the elected government, would compel a higher degree of accountability and would enable meaningful input from government backbenchers and opposition TDs. A powerful second chamber has the potential to make a big difference to the governmental system – but not necessarily for the better.

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Posted 20 July 2012

 

Possible referendums on Articles 26 and 34

Earlier this week the Minister for Justice announced proposals to amend several articles of the constitution dealing with the role of the judiciary. Details in a press release of 17 July 2012: http://www.inis.gov.ie/en/JELR/Pages/PR12000214.

1. Add a Civil Court of Appeal and a Family Court structure. This would reduce the load on the Supreme Court, which is responsible for a lengthy backlog of cases, and would also narrow the range of cases that reach it. Specialisation within the judiciary is the norm in many European countries and the diversity of cases that reach our Supreme Court is unusual. The only caveat is that principles can arise in one ‘type’ of case (eg family law) that have implications for other types, so a judicial system with separate silos would not be feasible, but this proposal is unlikely to arouse much opposition.

An additional and more radical step would be to establish a specialist Constitutional Court, separate from the regular court system – again, this is the norm across Europe, the German Federal Constitutional Court being the most high-profile example. Members of the FCC do not, unlike our Supreme Court judges, consider the constitutionality of a piece of legislation one week and listen to an appeal against a conviction for fraud the next week – they have an expertise in one area and they stick to that.

2. Reconsider the ‘one judgment’ rule in Article 26.2.2. This stipulates that when the President refers a bill to the Supreme Court for a verdict on its constitutionality, only one judgment may be delivered, and neither the content nor the existence of any dissenting judgment may be pronounced or disclosed. Perhaps surprisingly, there is no mention of reconsidering Article 34.4.5, which lays down the same one judgment rule in respect of the validity of post-1937 legislation. The Constitution Review Group (CRG), in its 1996 report, advocated the deletion of 34.4.5 but could not reach a consensus on 26.2.2.

The argument for the present situation is that the authority of a majority judgment could be weakened if it transpired that not all judges shared this view, especially if their reasons seemed to many people more persuasive than the arguments of the majority. When the president refers a bill to the Supreme Court the nation wants a firm and definitive answer, not a potpourri of arguments from which everyone can pick the ones that appeal to them most.

The argument for change is that it is difficult to cobble together one judgment from the disparate arguments of several judges; even if judges reach the same conclusion they may do so by very different routes, and a judgment that attempts to take on board everyone’s points may lack coherence. The suggestion that the existence of dissent weakens the force of a judgment seems contradicted by examples such as the Crotty case. Here, three superior court judges (one on the High Court and two on the Supreme Court) found against Crotty, and three Supreme Court judges found in his favour. Moreover, in 1987 constitutional commentators were generally surprised, and not necessarily convinced, by the Supreme Court majority’s reasons for finding in Crotty’s favour. However, this has had no impact whatever on the force of the judgment, which, as we know, is why every major EU treaty requires a constitutional change and hence a referendum in this country.

A change might, then, make life easier for judges, but what would be in this for the rest of us? The argument is that a plethora of judgments contributes to the development of jurisprudence; the CRG, for example, cites dissenting judgments delivered by Oliver Wendell Holmes in the US Supreme Court in the 1920s, which later became accepted as ‘good law’ (p. 83 of its report).

There is certainly a good case for deleting 26.2.2 and 34.4.5, but this is pretty arcane stuff to be putting to the people in a referendum. Any such proposal would surely have to be part of a reform package if it was to generate much interest from the electorate, especially given the ‘referendum fatigue’ noted by Theresa Reidy in her post here on 2 July.

3. Consider amending Article 34.3.3. This states that if a president refers a bill to the Supreme Court for a verdict on its constitutionality, and the Supreme Court upholds the bill, its constitutionality can never again be challenged. The amendment suggested is that any such bill become open once more to challenge after a certain time period, perhaps five years.

This is not a new idea. Way back in 1967 the Oireachtas committee on the constitution suggested a period of seven years, while the 1996 CRG report advocated deleting 34.3.3 entirely. The CRG was unconvinced by the 1967 committee’s recommendation that a positive verdict by the Supreme Court following a presidential referral should give a law immunity for a fixed period, raising, for example, the possibility that the state might be liable to meet claims for deeds done under a law that was initially pronounced to be constitutional but was subsequently pronounced invalid (which has always been taken to mean invalid ab initio). Even so, this course of action might have fewer disadvantages than either the status quo or outright deletion. Clearly there are arguments on both sides, but again it might seem an arcane issue in the context of an economic crisis.

4. Consider amending Article 26 so that the Supreme Court can decide to reject a presidential referral if it decides that there is ‘the absence of a proper factual or evidential basis on which to conduct such adjudication’. Whereas most of the proposals have been heard and discussed before, this one comes out of left field, and it would be very surprising if it sees the light of day.

Perhaps it is intended to check the power of the president, by empowering the Supreme Court to reject his or her references and, in effect, allow the bill to pass into law without holding a formal hearing. The implication is that the president would be required to supply some good reasons as to why he or she has concerns about the bill – a suggestion that would surely be seen as demeaning to the president by reducing him or her almost to the status of a plaintiff trying to secure a hearing. One reason for the low number of presidential referrals over the years (just 15 in over seventy years) is the existence of Article 34.3.3 – presidents are reluctant to refer a bill, knowing that an endorsement from the Supreme Court immunises it from challenge for ever more. The thinking may be that if this constraint is removed (point 3 above), then the number of referrals may rise to a level where the Supreme Court will wish to have a means of refusing jurisdiction. However, that assumes a rather cavalier or highly partisan attitude on the part of presidents which flies completely in the face of the experience of the office.

Or perhaps the idea is not that the president would be required to supply some justification for the referral but, rather, that the Supreme Court itself might wish, when faced with certain bills, to shrug its shoulders and declare that it would be unable to pronounce on the constitutionality or otherwise of a bill because there is no basis in fact or evidence to reach a decision. It surely cannot really be proposed that the Supreme Court could take such a position – if the Supreme Court itself cannot tell us whether a piece of legislation is constitutional, who can?

Besides, the process of deciding whether there is sufficient ‘factual or evidential basis’ to consider the constitutionality of a bill is likely to be much the same as, and not much less time-consuming than, the process of deciding the substantive issue of whether it is constitutional, so the attractions of this proposal are hard to see.

[It’s also possible that behind this idea is concern at some of the possibilities raised in a post on this site back on 3 October 2011, about what can be done if a president ‘goes rogue’. The point was made there that the constitution does not seem to supply a definitive answer to the question of what happens if a president refers to the Supreme Court a bill that the constitution states explicitly that he or she cannot refer, such as a money bill. Is the Supreme Court obliged to consider the constitutionality of every bill referred to it by the president, or is it entitled, perhaps at the prompting of the government, to ‘look behind’ a referral and decline jurisdiction on the ground that the referral itself was invalid? The change suggested to Article 26, though not very precisely spelled out in the Department of Justice press statement, might be intended to clarify this by stating explicitly that the Supreme Court can consider the validity of a presidential referral.]

5. Consider adding a secular oath as an option instead of the Christian oath currently prescribed for judges (34.5.1). Surely long overdue.

Perhaps some of these issues will arise as ‘other relevant constitutional amendments’ that the constitutional convention may consider.

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Posted 17 July 2012

Should we be able to recall our TDs?

 

Recall of elected representatives occasionally surfaces in discussions of political reform, and has been given topicality by the adverse publicity surrounding the Wexford TD Mick Wallace and his tax affairs. It also arose last month (June 2012) in the US state of Wisconsin, where attempts, ultimately unsuccessful, by local Democrats to pull the plug on the term of Republican governor Scott Walker got wide publicity outside the USA in this presidential election year.

The basic idea is that an elected representative is subject to ‘recall’ by his or her voters. Typically, a certain number of signatures on a petition are required, and if this number is reached a referendum on the incumbent’s continuation in office takes place. According to a reliable source (Wikipedia – there doesn’t seem to be a great deal of literature on the subject) this is pretty much confined to two countries, the USA and Switzerland (cantonal level only). The number of signatures required varies – in Switzerland it averages around 10 per cent of the electorate. There is also variation in the grounds for recall. In some cases it is necessary for those promoting the recall to cite specific grounds, in the broadest sense ‘misconduct’. In others, as in Wisconsin, the basis can be purely partisan – the petitioners are straightforwardly attempting to terminate the tenure of an office-holder whose policies they oppose, without having to claim malfeasance, incompetence, neglect of duty or impropriety. Given the nebulous nature of many of those concepts the difference may be academic.

The argument in favour is that it keeps elected representatives on their toes. They cannot, once elected, behave as they wish for the next five years, which could, in theory anyway, be quite a temptation for those who expect to retire, or feel certain of defeat, at the next election. Representatives are made permanently and continuously accountable to the people, preventing, as far as possible, the emergence of a ‘political class’ that can disregard the people except when election season comes around. If a representative engages in behaviour that attracts censure – in the past serving TDs have spent time in jail, and in the current Dáil a motion has been passed calling on one of its members to resign after the findings of the Moriarty report – some feel there should be some mechanism to prise them out of their Dáil seat.

For critics, of course, the opposite is true. Far from enhancing the quality of democracy, the recall provision is an archetypal populist measure that diminishes it, by turning a current tendency to short-term thinking into pathological short-termism on the part of elected officials. Recall brings ever closer the nightmare scenario where politicians have to change tack in response to the latest focus group or text vote, trying to keep everyone permanently happy and in the process satisfying no-one. It would become impossible for a government to develop and implement a five-year programme that entailed tough measures early in the term if it had in some sense to go before the electorate repeatedly throughout its term.

Whatever the general arguments – and the fact that recall is employed in so few countries is surely suggestive – there would be obvious difficulties in applying it in a country where MPs are elected from multi-member constituencies, as is the case in most of Europe, including Ireland. (In Swiss cantons, cantonal executives can be recalled, but not individual MPs.) Indeed, the same objections would arise in single-member constituency systems where, unlike the USA, there is not a pure 2-party system and many MPs are elected with fewer than 50 per cent of the votes.

The main problem is that no individual TD wins a majority of the votes in the first place, so each would be vulnerable to being ‘recalled’ even if their popularity had not diminished since the general election. The highest proportion of the vote won by any candidate in the 2011 election was the 33.3 per cent of the votes won by the FG candidate in Kildare South. Mick Wallace topped the poll in Wexford, but he won only 17.6 per cent of the votes, so it is perfectly plausible that he could lose a recall referendum even if his support has remained steady or increased in the interim.

TDs from minority parties would be very vulnerable. In Dun Laoghaire, for example, where Richard Boyd Barrett won only 11 per cent of the votes in 2011, it might not be difficult to find sufficient supporters of FG, Labour and FF to support a proposal that he be recalled and a fresh election held to fill the seat, in which he would have little chance of winning. But the tables might also be turned: opposition supporters could launch attempts to recall government TDs, especially those accused of having broken promises they made before the last election, and according to the opinion polls Labour TDs in particular might have difficulty in surviving recall attempts.

Given that the average TD won 8,338 first preferences in 2011 while the average number of valid votes per constituency was nearly 52,000, it is obvious that few TDs could be confident about surviving a referendum on their individual performance. The idea of holding such a referendum, in fact, seems in complete contradiction of the principles underlying any system of proportional representation, in particular the principle that minorities are entitled to representation whether the majority likes their choice or not.

That being so, surely the idea of introducing a recall provision in Ireland is a non-starter, and this is not something that should get onto the agenda of the constitutional convention?

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Posted 1 February 2012

‘Forcing a referendum’ on the next EU treaty via Article 27

‘Independent TDs devise plan to force referendum’ reads the headline on the Irish Times site on 1 February. The cunning plan, it turns out, is that they would aim to use the provisions of Article 27 of the constitution to bring about a referendum on the recently-agreed EU treaty (or quasi-EU treaty) if the government decides that it does not have constitutional implications and hence need not be put to a referendum. Article 27 makes provision for a certain number of members of the Houses of the Oireachtas to petition the President not to sign a bill ‘on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained’ (27.1).

(Clarification 3 October 2013, in the context of the abolition of Article 27 being an aspect of the Seanad abolition debate: The previous paragraph was originally worded without sufficient care. It is worth emphasising that the President does NOT have the power to put a bill to a referendum, despite the apparently widespread belief that he or she does. The power that he or she has is the power not to sign a bill, if petitioned by the specified number of parliamentarians, unless such a bill has either been put to the people within eighteen months and not vetoed by them, as explained below, or has been passed by the Oireachtas again within eighteen months and following a general election. Even the Referendum Commission’s Guide to the Seanad referendum (p. 6) implies that the president does have the power to put bills to a referendum – ‘This possibility of the reference of Bills to the people by the President will be removed from the Constitution’ – but given that that the first paragraph of this post originally gave the same impression I am in no position to cast aspersions.)

Article 27 may not fulfil the hopes that some people may be vesting in it, though. For one thing, to get such a petition off the ground is no trivial task. It must be endorsed by at least a third of TDs and a majority of Senators. In the Dáil, when the government took office it had 113 of the 166 TDs, leaving only 53 (32 per cent) in opposition. Even though a few erstwhile government TDs have jumped ship since then, it would still require pretty much every non-government TD to support such a petition if the figure of a third (ie 56 TDs) is to be reached).

In the Seanad, the government had 30 of the 60 seats when the 24th Seanad met (John Coakley’s chapter on ‘The final Seanad election?’ in How Ireland Voted 2011, p. 258). The two opposition parties, FF and SF, had only 17 senators between them, with the other 13 being independents. So securing a majority of support in the Seanad would require the backing of all non-government senators plus some government defection(s).

Even if these hurdles were met, the battle would be far from over. The President would be obliged to consult the Council of State before making a decision but that decision would be his alone. In favour of calling a referendum would be the point that it could hardly be disputed that this international agreement is a matter of ‘national importance’. On the other hand, given that no referendum has ever taken place in the history of the state except on the matter of changing the constitution, it would be a dramatic break with past practice and convention if the President were to bring about a referendum that is not constitutionally prescribed. Notwithstanding this, it might be argued that just because Article 27 has never been used this does not mean that the Article has somehow ‘lapsed’ through desuetude – the Icelandic president also has powers that were thought to have become dead letters through non-use only to prove very much alive when presidents made two referrals of bills to the electorate in recent years.

The real sting in the tail of Article 27, though, comes in 27.5.1.i, which talks about the bill being approved by the people ‘in accordance with the provisions of section 2 of Article 47’. Those who flip through the pages of the constitution to consult this article discover that an Article 27 referendum is not decided, as constitutional referendums are, by a simple majority of votes cast. Instead, the bill that is being put to the people is deemed to have been approved by them unless (a) a majority of votes is cast against it and (b) the number of votes cast against it amounts to at least a third of the total electorate (47.2.1). The reason for the second condition, Éamon de Valera explained in 1937, was to prevent intense minorities being able to veto bills that had the tacit consent of the majority.

This second requirement is onerous. If, say, the votes ran 60–40 against the treaty, a turnout of 55.6 per cent would be needed for this to constitute a veto. If the No vote was 54% (it was 53.9% in the first Nice referendum, and 53.4% in the first Lisbon referendum) then turnout would need to reach 61.7%; since 1972, only once (divorce in 1995) has turnout reached that level in a stand-alone referendum, ie one not taking place simultaneously with a general election. The No vote in the referendum on extending the powers of Oireachtas committees in November 2011 amounted to just 29.1 per cent of the electorate, so had that been an Article 27 referendum the people would be deemed to have approved the proposal. In the history of the state, No majorities comprising at least a third of the electorate have been few and far between. The two electoral system referendums way back in October 1968, the first divorce referendum in 1986, and the referendum on restricting the availability of abortion in November 1992 (same day as a general election) are the only four where the No vote has amounted to a third of the electorate or more.

And, as a final blow to those who hope that Article 27 might be a route to prevent the government of the day signing up to this treaty, Article 27.5.1.ii states that even if the people do veto the bill in the manner required by Article 47, the bill can be passed if Dáil Éireann passes a resolution to that effect, within 18 months of the President’s referral of the bill to the people, following a general election. So, if this bill were seen by the government as central to its programme, then even if it were vetoed by the people the Taoiseach could dissolve the Dáil and, following a general election at which, the polls currently suggest, the current government would probably be re-elected (see Adrian Kavanagh post 29 January 2012), simply reintroduce and pass the bill.

Nothing is impossible these days, but it seems unlikely that Article 27 will prove to be a route by which the government is prevented from signing the treaty.

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Posted 3 October 2011

What happens if a president goes rogue?

The question of a presidential attempt to refer, delay, or even veto bills that he or she does not like has surfaced a couple of times during the campaign so far. First, Mary Davis seemed to suggest that she would not rule out referring a budget to the Supreme Court for a decision on its constitutionality, and then, in the Late Late debate on 30 September, Dana Rosemary Scallon declared that she would refuse to sign a bill that she felt threatened the constitution.

The constitution does not, of course, use any such term as veto. It states that the president, by his or her signature, ‘shall promulgate every law made by the Oireachtas’ (Article 13.3.2). The president may refer a bill to the Supreme Court for a decision on its constitutionality (Article 26), but two categories of bill are excluded from the scope of Article 26: money bills (the budget) and bills containing a proposal to amend the constitution. Hence the quick response to Mary Davis’s remark: commentators were as one in stating that this question cannot arise as the president is expressly precluded from referring a budget to the Supreme Court.

Nonetheless, this raises the intriguing question: suppose, notwithstanding the words of Article 26, a president did decide to refer a money bill to the Supreme Court, or simply refused to sign a bill to which he or she strongly objected? No such situation has ever arisen, but the breadth of the range of candidates in the 2011 election means that it cannot be ruled out. Only two of the 7 candidates, Michael D Higgins and Gay Mitchell, are thoroughly experienced in the way the major political institutions work and, presumably, socialised into acceptance of the conventions that now apply to the office; the others may not be so ready to accept the constraints that the political and legal establishment believe attach to the office. The forthcoming budget, which we already know will entail large spending cuts and tax increases, will be opposed by some or all of the opposition parties and by many voters. What would happen if President McGuinness or President Norris, for example, declared that he would not sign the Finance Bill into law, or President Scallon refused to sign a bill that clashed with her values?

Any attempt to refer a budget to the Supreme Court would create a complicated situation. Is the Supreme Court obliged to consider the constitutionality of every bill referred to it by the president, or is it entitled, perhaps at the prompting of the government, to ‘look behind’ a referral and decline jurisdiction on the ground that the referral itself was invalid? Only the Supreme Court can provide the answer to this.

If that were sorted out, there would still be the difficulty of a president who simply refused to sign a bill into law. According to both the letter of the constitution and established practice, this simply couldn’t happen, and both the government and constitutional commentators would immediately point this out. The hypothetical president might say, though, that he or she believes that they are answerable to the Irish people of 2011, who elected them directly, and not to the letter of a constitution written in 1937 by the proverbial dead white males who could not have envisaged the economic crisis of 2011. They might justify their stance by claiming to be guided by the ‘directive principles’ listed in Article 45 of the constitution, such as Article 45.4.1°:

“The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged.”

The preamble to Article 45 says that these principles ‘are intended for the general guidance of the Oireachtas’, and, after all, the president is part of the Oireachtas (Article 15.1.2). The president, then, might defend his or her behaviour by denying that he or she is in any way disrespecting the constitution but might claim, rather, to be acting in accordance with its spirit in refusing to sign into law a budget imposing severe spending cuts and in demanding that parliament produce what he or she regards as a less harsh or simply a fairer budget.

The constitution has three means of dealing with a president who ‘goes rogue’. These are securing a declaration from the Supreme Court that the president is ‘incapacitated’ (Article 12.3.1), appointing a presidential commission to fill the void created by the president’s ‘failure to exercise and perform the powers and functions of the office or any of them’ (Article 14.1), or impeachment (Article 12.10).

None of these would be a straightforward process. The first would hardly be applicable, as we are hypothesising a president in full control of his or her capacities. The second would be a fraught process as the president would obviously resist his or her attempted displacement. It is unclear who could resolve this, and indeed the constitution seems to contain something approaching a contradiction, conferring on the Supreme Court the decision as to whether a president is ‘incapacitated’ (12.3.1) while at the same time asserting that the president is not answerable to any court for any of his or her actions (13.8.1). Matters are complicated by the fact that the Chief Justice would be a member of the presidential commission that sought to take over the president’s powers.

The impeachment process is at least more clear cut and has the advantage that the matter is resolved entirely at the political level without involvement by the courts. The bar to securing an impeachment is very high. Essentially, it entails two-thirds of the members of one House preferring a charge of ‘misbehaviour’ against the president, and two-thirds of the members of the other House declaring that the charge has been sustained (article 12.10). Note that this is not a requirement just for a two-thirds majority among those voting but that two-thirds of the total membership must vote for the motions: that is, 111 TDs and 40 senators. As it happens, the current government, uniquely in the history of the state, has two-thirds of TDs in the ranks of his supporters, but the large number of independents among the Taoiseach’s 11 nominees to the Seanad means that the support of 40 senators could certainly not be taken for granted.

The Constitution Review Group, discussing the question of being more precise and detailed in specifying the powers of and constraints upon the president, declared in its 1996 report that this was unnecessary and undesirable, as ‘Matters of this kind are best left to the wisdom and sense of propriety of those entrusted with high public office’ (p. 27). What happens when a president’s conception of wisdom and propriety comes into conflict with that of the government may yet, depending on the result of the forthcoming election, be tested.

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Posted 19 September 2011

Should Fianna Fáil run a presidential candidate?

FF has got itself into something of a tangle over the presidential election. Torn between a range of options that seems to proliferate all the time – run its own candidate, facilitate a FF member to run as an independent, facilitate any independent who requires signatures to secure a nomination, allow each of its Oireachtas members to do what they want, or refuse to allow any FF Oireachtas member to assist anyone to secure a nomination – the party seems to have ended up in a situation from which there is no simple way out and, moreover, to have stirred up the first speculation about a leadership heave or a full-scale split into the bargain.

The mystery is why FF ever decided not to run a candidate, and entering the fray with its own candidate, even at this late stage, seems the most obvious course. It would be extraordinary if there were an election for the first office in the land, one that is already engaging the public, with candidates from three political parties and at least two independent candidates fighting it out – and with Fianna Fáil sitting meekly and silently on the sidelines. Sinn Féin’s energy and commitment to the campaign of Martin McGuinness contrasts starkly with what looks like FF timorousness, even if some in FF clearly see this choice as simply realism rather than lack of courage. Either way, the effect will surely be to create, or reinforce, the image of Fianna Fáil as a party that is increasingly marginal to Irish politics.

There are, of course, reasons, not to be dismissed out of hand, as to why FF decided some weeks ago not to run a candidate. One is that if the party runs a candidate who polls poorly – which means, in effect, even lower than the 17.4% of the votes the party won in the February election – this might send its morale spiralling even lower. Reportedly, private polling and/or focus group research suggested that no FF candidate would fare well. However, even a disappointing result is surely better than the 0% that would be registered by not running at all, and in any case the findings of polls conducted some way out from an election, at a time when the full list of candidates is not known, should be interpreted with great caution.

A second is that it does not have the money to fight an effective campaign. This may well be true in narrow financial terms, but parties do not usually let this stop them participating in important elections. Many parties at many elections in the past could have opted out with this excuse, but they find a way round it: by borrowing, by running a low-cost campaign, or by tapping that rich resource, the membership, for funds. FF may not have the 70,000 members that it frequently claims, but it surely has enough to fund a decent campaign with a modest contribution from most of them. (Seemingly, the money would have been there to fight a campaign had Gay Byrne agreed to run with FF support.) Indeed, a major reason for standing a candidate would be to reinvigorate and energise the ordinary membership of FF, who, after the debacle of the February election, when members were evidently quite unclear what the party stood for any more, desperately need a cause they can fight for whole-heartedly. It must surely be galling for many ordinary members of FF to be asked to sit on their hands for the next six weeks while the other parties commit themselves to the political contest – and if it not galling to them, then FF is in bigger trouble than we thought.

Third is the question of a candidate. While it would obviously make no sense to run the wrong candidate – such as someone closely associated with what will now always be perceived as the less than successful record of the FF-led administrations between 1997 and 2011, or someone with no electoral appeal – Brian Crowley did seem to fit the bill as a suitable candidate, as someone with a proven electoral track record who can nonetheless plausibly disclaim all responsibility for previous government decisions.

Fourth is the argument that the important elections for FF are the local elections of June 2014 and it should not be distracted from its task of reorganisation by getting involved in doomed or irrelevant campaigns before then. Yet, if a party does not continually assert its relevance, it may find that the electorate loses interest in it. De Valera supposedly said that ‘Labour must wait’ (though this may be apocryphal), but he would have been surprised to hear a later leader of his own party seeming to say ‘Fianna Fáil must wait’.

And, fifth, it is pointed out that Enda Kenny made the right choice in 2004 when he decided that Fine Gael would not contest the presidential election of that year. Things were different in 2004, though. There was a popular incumbent, in the form of Mary McAleese, who had high satisfaction ratings and would almost certainly have been re-elected whoever stood against her, and FG knew that if it did not run a candidate there would probably not be a contest. In 2011 there is an open race (no incumbent) and a definite contest, one in which every other significant party will be taking part. If in the end there had been a contest in 2004, with FF, Labour and SF all running candidates, then it seems very unlikely that FG would have adhered to its initial decision not to enter the contest, or that it would now be hailed as a masterstroke had it done this.

Fianna Fáil’s role in the 31st Dáil has been rather marginal so far, and it is hard to see how standing aside from a presidential election can do anything other than marginalise the party further.

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Posted 5 September 2011

Should the presidential nomination rules be changed – and, if so, how?

The first of these questions seems to have acquired ‘Is the Pope a Catholic?’ status, with apparent unanimity that the existing nomination requirements are too exacting. To recap, a would-be presidential candidate must secure the nominations of either (a) 20 members of the Houses of the Oireachtas (TDs and Senators), or (b) four city or county councils. Additionally, an incumbent or former president who has served one term may nominate herself or himself for a second term.

This issue has arisen during several previous campaigns, as the requirements tend to be discovered anew at the outset of each campaign. There is usually some kind of vague consensus that, while it is too late to change the rules for this campaign, it is something that ‘should be looked at’ before the next one. However, once the current contest is over, everything to do with the presidency immediately drops to the bottom of the political agenda – governments have other matters such as the economy to think about – and no more is heard of the idea for the next six and a half years, at which point the cycle begins again.

It might be said that in the past, as far as we know, these restrictive requirements have not deprived the country of any outstanding presidents or led to the election of any sub-standard ones, but of course we can’t know who might have tried to come forward had the hurdles to nomination been less formidable. The issue acquired particular relevance in 2011 because a would-be candidate, David Norris, was leading in opinion polls and yet having great difficulties in securing a nomination. While his bid for candidacy ultimately foundered for other reasons, the general concern remains. Preventing a popular candidate from running would not just deprive that individual of a chance of elected office; it would deprive all those who intended to vote for the individual of their right to be represented by the person they preferred. If the rules on nomination at Dáil elections were so restrictive that they prevented well-supported independents such as Shane Ross or Mick Wallace from getting on to the ballot paper, they would be indefensible and, unless constitutionally enshrined, would be deemed unconstitutional.

Unless the rules are changed, the requirements are set to become even more onerous by the time of the next presidential election, since the anticipated abolition of the Seanad and reduction in the number of TDs will mean that the Oireachtas route will then require obtaining the signatures of 20 out of about 150 TDs (13 per cent) instead of 20 out of 226 TDs and Senators (9 per cent) as at present. As things stand, Fianna Fáil, with just 19 TDs at the moment, would struggle to get a candidate onto the ballot paper.

If the requirements were opened up, there are three main ways of altering them: financial, direct nomination by the public, or retaining the format of the current provisions but relaxing them.

At Dáil elections, a candidate can be nominated by a registered political party, by 30 registered voters, or by themselves on foot of a €500 deposit. The likelihood is that a financial requirement would be felt inappropriate for a presidential election, so a signature requirement is the only serious alternative to some amendment of the present situation.

With 43 Dáil constituencies, a simple scaling up of the requirement for 30 signatures in a Dáil constituency would give a figure of 1,290 signatures for a presidential nomination. This might seem rather low for a nationwide contest, and would conjure up the ‘chaos scenario’ whereby every county hospital committee (and many other groups besides) runs its own candidate and offers its next preference to the highest bidder: to whichever of the serious contenders makes the most sympathetic noises re retention of the local hospital services. A larger figure, somewhere in the region of 5,000 to 30,000, would filter out those without broad support while not making it impossible for genuine contenders to secure a nomination. Signature requirements on this scale are not a feature of the Irish political system; they arose only in the case of the initiative provision envisaged (though never provided) by the 1922 Irish Free State constitution, which would have enabled 50,000 voters, at a time when the electorate was only around two-thirds of its current figure, to demand that the Oireachtas either pass a law or put the issue to a referendum. Whatever the figure, to prevent a proliferation of ‘local heroes’ it would be easy to think of additional requirements insisting on proof of geographically broad support: for example, 10,000 signatures, with at least 100 from each of at least two-thirds of the counties or constituencies.

However, there is a general difficulty with a signature requirement, namely validation. This is why the Constitution Review Group, in its 1996 report, kicked to touch on the issue, stating that the existing nomination requirements are too restrictive but feeling unable to go further than saying that, given validation difficulties, a mechanism based on a number of voters ‘ought to be explored’ (p. 22) – back to ‘should be looked at’ again. Validating signatures would presumably mean local authority employees knocking on the doors of supposed signatories and seeking confirmation of their identity and their signature. As we know from the experience of conducting surveys and maintaining the electoral register, this would mean repeated visits to many addresses, a good deal of evening work, and the certainly that many names would prove in effect uncontactable. The administrative capacity to take on this task surely does not exist. Given that both central and local administrative machines have difficulty in coping with their existing responsibilities, and with public sector staff numbers being frozen or reduced, how realistic would it be it to expect them to deal meaningfully with this additional responsibility?

That seems to leave only the option of a relaxation in the current requirements. Instead of 20 members of the Houses of the Oireachtas, the figure could be reduced to 5 per cent of such members, which would be 12 of the current 226, or 7 if the Seanad were abolished and the size of the Dáil reduced to 150. The local authority route might be lowered from 4 to 2 city or county councils. Alternatively, given the anomalies that can arise when councils as a whole are required to make a decision – a nomination can be made by a handful of councillors with the majority abstaining, or a coalition of parties could use their combined majority on every council to prevent any independent candidates emerging – individual councillors might sensibly be made the unit of nomination, with a requirement of 5 per cent of councillors. With the present figure of 883 councillors, this would requite a nominee to secure the signatures of 45 councillors – and to ensure that such candidates are not simply capitalising on highly localised esteem, these signatures might need to come from, say, members of at least 10 different local authorities.

Thus, Article 12.4.2 might be rewritten as:

2° Every candidate for election, not a former or retiring President, must be nominated either by:

i. a number of persons, each of whom is at the time a member of one of the Houses of the Oireachtas, amounting to not less than five per cent of the total membership of the Houses of the Oireachtas, or

ii. by a number of persons, each of whom is at the time a member of the Council of an administrative County (including County Boroughs) as defined by law, amounting to not less than five per cent of the total membership of such Councils. The nominators must include members of at least ten different administrative Counties (including County Boroughs) as defined by law.

 

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Posted 25 January 2011

A looming constitutional crisis?

There has been some discussion as to whether, in the event of Brian Cowen’s deciding not to contest the forthcoming election, it would be constitutional for him to remain as Taoiseach, given that the constitution states (Art 28.7.1) that the Taoiseach must be a member of Dáil Éireann. There has been speculation that this could create a constitutional difficulty, given that the Taoiseach is nominated by the Dáil. Would we then be without a Taoiseach until the 31st Dáil meets?


No, that wouldn’t be a problem. The constitution also makes clear that “The members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed.” (Art 28.11.2). Otherwise there would be a huge problem, given that by definition there are no TDs once the Dáil is dissolved. Therefore, Brian Cowen, whether he stands at the forthcoming election or not, whether he retains his seat or not, whether he is FF leader or not, remains Taoiseach until the 31st Dáil meets to elect a new Taoiseach.


We have had some precedents. The Tánaiste too must be a member of the Dáil (Art 28.7.1 again), but at the November 1992 election the then Tánaiste, John Wilson, did not contest the election. Nonetheless, he remained Tánaiste until Dick Spring took that position as part of the post-election government formed in January 1993. Likewise, in 2007 Michael McDowell remained Minister for Justice until the 30th Dáil convened, even though he had lost his seat at the election, and there have been other such cases.


That is not a potential snake in the constitutional grass, so to speak, but one that could be relates to the minimum size of the government. Art 28.1 specifies that the government must contain no fewer than 7 and no more than 15 members (the upper limit has undoubtedly prevented certain past Taoisigh from expanding their patronage powers even further than they did, so we should be thankful for it). The lower limit must have seemed pretty academic back in 1937, as indeed it did just a week ago, given that the last time a government was formed with fewer than 10 ministers was way back in 1930, when W. T. Cosgrave’s last government contained just 9 members. The scenario that de Valera evidently did not think of when writing the constitution, and who can blame him, was that a Taoiseach might accept (or perhaps prompt) the resignation of a large number of ministers without first making sure that he had the numbers in the Dáil to enable him to replace them.


As a result, the debacle of last Wednesday and Thursday brought government membership down to 9, and the withdrawal of the Greens on Sunday reduced it to 7. The implication seems to be that the remaining ministers can behave as they like from now on because they are literally unsackable. Were one to fall under the proverbial bus, bringing membership of the government down to 6, we would certainly be in an interesting situation constitutionally. No doubt some citizen would be tempted to go to the High Court to argue that any act or decision taken by the rump group of ministers had no validity because this group of people did not constitute a valid government as defined by the constitution. And if this happened after the dissolution of the 30th Dáil, making it impossible for any ministers to be appointed even if the opposition was willing to facilitate this to make the process of government possible, the over-used term ‘constitutional crisis’ might for once be justified.

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Additional comment, 28 Jan 11

If this dire situation came to pass – one of the remaining 7 ministers falling under a bus or being abducted by aliens after the Dáil is dissolved on Tuesday 1 February – then there would, it seems, be no valid government in existence to do anything at all, and there would certainly be no possibility of appointing an additional minister, senator or otherwise, given that all ministerial appointments have to be approved by the Dáil (Article 13.1.2).

Thus it would be open to anyone to argue before the courts that some government decision or action – to draw down funding from the IMF or ECB, for example, or to repay an earlier loan – should be declared null and void because the six people who decided on this course of action had no authority to do so; they no more constituted a government than do any other group of six people, because the constitution states explicitly that the government contains at least seven individuals, each of whose appointment was explicitly approved by the Dáil.

Of course, the state would hardly accept such an argument lying down were it put forward in any court case. It would point out that under article 28.11.2 all ministers continue in office until the new Dáil meets, and that therefore the Taoiseach and each minister retain their powers of action and decision. At most, any problem could relate only to those powers that are expressly to be exercised by the government as a whole as opposed to lying within the jurisdiction of individual ministers.

Beyond that, it would argue that article 28.1 should be considered not in isolation but in the context of the constitution as a whole. The constitution was accepted and approved by the people in 1937 as a framework for government, it would say, not as a document that might one day thwart the process of government, and there is no reason why the requirements of article 28.1 should be set above the intention of the constitution as a whole that the people be able to enjoy the benefits of government. In effect, the ‘spirit’ of the constitution as a whole should weigh more heavily than the wording of any specific article. The purpose of setting a minimum number of ministers, it might suggest, is to prevent a situation, which has occurred in some non-democracies, where an autocrat appoints himself minister for virtually everything. The present situation, it would observe, has arisen not because a six-member cabal is trying to concentrate power in its own hands but through bad luck (and, it might admit, bad judgement). To nullify all government (or ‘government’) actions simply because of a series of unforeseeable accidents could not possibly be in the public interest.

And then the courts would have to decide.

Still, it might be prudent for the Taoiseach, if the Dáil does meet again, to seek cross-party agreement to allow him to appoint one or two additional ministers so as to pre-empt such an eventuality. These individuals would have to be TDs who are not standing in the election (Seán Ardagh or Tom Kitt, for example) and hence could not be motivated by a desire to boost their profiles, and they would be nominated on the understanding that they would operate on a ‘care and maintenance’ basis and certainly would not go on a spree of spending public money in marginal constituencies.

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Posted 13 January 2011

Title of lead post: Separation of powers (Eoin O’Malley, 10 January 11)

Parliament and government

Separation of powers is a good thing – up to a point. Yes, non-ministerial TDs of all parties should have a more meaningful role than they do at present, as pretty much all contributors to this site seem to agree, both in terms of policy formulation and scrutiny of government. But a genuine separation of powers is simply impossible to achieve in a parliamentary system, where parliament elects the government – and I don’t think anyone is seriously proposing that this country adopts a presidential system.

Nor should we assume that all wisdom lies with parliament, and if only TDs were free of party whips the quality of governance would improve. Cohesive parliamentary parties are central to parliamentary government. It just wasn’t the case during the 2000s that high-minded government TDs were dragooned by pressure from the whips into voting, against their better judgement, for policies of ‘light touch regulation’ which allowed the banks to borrow and lend on a catastrophic scale.

This country is pretty much unique in the insistence that all ministers be TDs, and earlier discussions on this site have pointed up the disadvantages of this. Still, we should not exaggerate the ‘separation’ of parliament and government elsewhere. Even in countries where ministers need not or cannot be MPs, most are current or former MPs. In France, for example, ministers cannot be MPs, but typically they are elected to parliament; stand down upon appointment as a minister, to be replaced by a designated substitute; and run for parliament again at the next election, as their substitute obligingly stands aside for them. French governments may sometimes be constrained by parliament, but simply because the parliamentary leader of the governing party may be an internal party rival of the prime minister and tries to thwart the latter’s plans. The French National Assembly is, despite the rule debarring ministers from being MPs, among the weakest in Europe – probably even weaker than Dáil Éireann.

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Posted 7 January 2011

Abolishing the Seanad

Like most contributors to the site, I’m unconvinced by what little rationale has so far been offered for the abolition of the Seanad. First, no-one has seriously, or even flippantly, suggested that bicameralism is the cause of the current economic difficulties. Just what is the problem that abolition of the Seanad is supposed to solve? Second, while many do argue that the inability of the Oireachtas to hold the government accountable is among those causes, abolition of the Seanad would reduce rather than enhance accountability, by removing Senators’ ability to contribute via Oireachtas committees as well as through whatever input the house per se has. Third, if saving money is the purpose – and it’s about the only one that has been offered so far – this could be achieved through reductions of salaries and expenses of Oireachtas members rather than by abolishing the Seanad and/or reducing the number of TDs. Fourth, the move has elements of tokenism about it, giving the impression of implementing ‘political reform’ in the hope of currying some favour with the public without in fact achieving anything of substance. Abolishing the Seanad without simultaneously outlining any clear programme for strengthening the Dáil vis-à-vis the executive – and, in fairness, the Labour proposals published yesterday do contain some constructive suggestions there – can only contribute to a cynical assessment of this measure.

Having said that, while I’d like to mount a strong defence of the Seanad, it’s not easy to do that. Various Oireachtas committee reports and indeed writings of academics have, over the years, put forward suggestions for roles that the Seanad could usefully fulfil. However, if an institution that has existed for 73 years has to be defended in terms of its potential rather than its achievements, that tells its own story.

And just what is its potential? No-one would really advocate giving the Seanad as much power as the Dáil has. Outside federal countries, it’s rare to find exceptionally powerful second chambers, and the two cases of this in Europe – Italy and Romania – do not inspire confidence as models to follow. Ireland is in fact one of only three European countries that are both small and unitary and yet have a second chamber (Czech Republic and Netherlands are the other two). While roles such as scrutinising statutory instruments or monitoring EU developments have been mooted, these savour of heads being scratched in an attempt to come up with a meaningful role for the Seanad rather than constituting tasks that are so weighty that any other country has ever felt the need to dedicate a second chamber to them.

The other main possible role put forward for a renewed Seanad is that of ‘platform for the voiceless’, an arena in which groups could elect their own representatives in a process that would not be dominated by the political parties as the current electoral process is. This is not so far from the impression of the Seanad that one might get from reading the constitution – indeed, Article 19 allows for the direct election of Senators by groups or associations, though the necessary legislation has never been implemented – though the thinking now rather favours the representation of under-represented or marginal groups rather than the big battalions of sectoral interest groups as in the relevant legislation.

However, the same concerns arise here as with the close involvement of major economic interest groups in policy-making under the ‘partnership’ process: should private groups, not accountable in any way to the public as a whole, be able to make decisions that affect the whole of society? While everyone wants the voices of emigrants and the people of Northern Ireland to be, in some sense, ‘heard’, enthusiasm among the southern electorate for giving them actual power is likely to be more muted. Yet, if the body to which groups elect members does not have the power to make decisions, it becomes the proverbial talking-shop, and as such open to exactly the same existential criticisms as today’s Seanad.

If a Seanad did not already exist, I doubt very much whether anyone would now be suggesting establishing one, let alone one with the limited powers and idiosyncratic method of election of the present one. So, however cynical we might be about the underlying motives of some of those advocating abolition, anyone opposed to this probably needs to come up pretty soon with a convincing blueprint for a reformed Seanad that would justify preserving the second chamber.

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Posted 9 December 2010

So, just how many seats will they win?

With the election now just a few months away, possibly even closer, we should have a clear idea of how the parties will line up in the 31st Dáil. Nonetheless, there is evidently still a good deal of fluidity in voting intentions. Fianna Fáil support is rather like the banks’ liabilities: every time we feel that a bottom has finally been determined, there turn out to be further depths yet to which the graph can plummet. All that we have learned over the years tells us that FF cannot possibly poll as low as the 17 or 18 per cent at which recent surveys have recorded it, never mind the 13 per cent of last week’s poll, but this is the first election since 1927 that FF has gone into knowing it is doomed to defeat whatever it does, and much of what we have learned over the years does not seem to apply any more.

FG has shown no signs of a surge, and the decline in its vote in the Donegal SW by-election relative to 2007 is hardly a positive sign, but by-elections are different, and there is clearly a feeling that it has regained its traditional ascendancy over Labour, so at present it is in pole position to emerge as the strongest party.

Labour is still on course to achieve a record level of support, yet its fifth position in Donegal SW, the way in which its voting support in the 2009 local elections fell somewhat short of pre-election poll findings, together with uncertainty as to how its large number of new and relatively unknown candidates will fare when the voters come to mark their ballot papers, have all contributed to the continuing difficulty many people have in envisaging that it could emerge as the strongest party.

Sinn Féin, meanwhile, is also on course for a record haul of votes. Its first by-election victory since 1925 suggests that, unlike in 2007, its creditable opinion poll figures – over 10 per cent in several polls, up to 16 per cent in last week’s Red C poll – might actually translate into votes on polling day.

Finally, it’s worth observing that a striking absentee from the political scene is (so far, anyway) any new party. Confidence in the government is low, confidence in the opposition not a great deal higher (the Irish Times poll of late September found that only 39% thought a new government would improve the economy), but unlike the last crisis of the mid-1980s no new force has emerged to fill what might seem to be a sizeable gap in the market. In the other countries worst affected by the current economic difficulties – Greece, Portugal, Spain – too, voters are switching from some established parties to others rather than to new parties, a sign of the institutionalisation of many of Europe’s party systems.

If we knew how many votes the parties would win, how could we figure out the seat distributions? One way is to apply the party gains / losses in vote terms to each of the 43 constituencies. This has been done a number of times on these pages by Adrian Kavanagh and leads to some fascinating projections and discussions. There is a lot to be said, though, for the altogether simpler method of just applying the national vote shares to the total number of seats and generating estimated party seat shares that way. As the saying goes, if a party gets the votes it will get the seats, and if it doesn’t get the votes it won’t get the seats. Thus, if a party wins 20% of the votes, we know it will win about 20% of the 165 seats being contested (ie 33), even if we don’t know exactly where it will win these, which is an altogether more difficult conundrum to solve. Essentially, this assumes that parties will be over-represented in some constituencies and under-represented in others – a reasonable assumption, though not always true, as we saw in 2002 when FG lost out in more cases than it was over-represented.

Four other factors will affect the vote–seat conversion:

(i) party size. The largest parties invariably pick up a seat bonus just for being large, as their candidates stay in the count longest and are still around to receive transfers from smaller party candidates as these are eliminated. The small district magnitude employed in Ireland (only 4 seats per constituency on average) compounds this. This has always worked to FF’s advantage in the past, but at some estimates of its vote next time its benefit from this factor in 2011 will be small or even non-existent. And if SF support on the day reaches the level found by some polls, of 16% or so, it will benefit from this factor. All four main parties stand to receive some benefit, while, as always, Independents collectively will be the biggest losers from this.

(ii) candidates. It’s possible that some voters who tell pollsters that they intend to vote for, say, Labour, and indeed would do so if Éamon Gilmore was on the ballot paper in their constituency, won’t do so on the day when they find they know little about the local Labour candidates. The same might apply to SF; does it have enough strong candidates to capitalise on the rise in support for the party? Conversely, FF might hope that even if voters are now alienated by the party brand, some voters will still recall with gratitude the hard work of individual FF TDs over the years. The 2002 election study, after all, showed that many voters, according to their own accounts anyway, give more weight to candidate than to party when making their voting decision (The Irish Voter, chapter 8).
But, as against this scenario, experience shows us that when the tide runs strongly for or against a party, it affects it pretty much everywhere. The new votes for the PDs in 1987 and for Labour in 1992 swept into the Dáil candidates who were not well known even in their own constituencies, while FG’s big loss of support in 1987 saw many long-serving and hard-working TDs ousted. Likewise, while many voters might say that candidate rather than party is what determines their vote, we have to take this with a pinch of salt given that the candidate line-up at the next election won’t be hugely different from that in 2007 and yet we are expecting a very different pattern of votes. Indeed, not only will long-serving FF TDs not be protected by their record over the years, but longevity might even be a liability as voters express their rejection of people who they feel have been around too long and have contributed, if only through passivity, to the current state of affairs.

(iii) transfers. Parties that are everyone’s second choice can expect a higher return of seats per vote than parties that other voters prefer to keep at arm’s length. SF has always lost out from this in the past. The pattern of transfers in the Donegal SW by-election, where Pearse Doherty received nearly twice as many transfers from Labour as the FG candidate did, shows that the right candidate can overcome what is still, for many voters, a certain resistance to SF as a party, and transfers from smaller groups on the left may go in reasonable numbers to SF. The number of Labour transfers passing to SF is likely to be higher than in 2007, and though SF still will not pick up transfers from FF or FG in significant numbers, the number of FF transfers in particular is likely to be less than those from independents and smaller left-wing groups, so this won’t matter so much. For once, SF won’t be the main loser from transfers.
This time, FF will suffer most from the impact of transfers; it is now back to its pre-1997 position of having no allies and, moreover, being sufficiently unpopular to motivate supporters of all other parties to rank every other party above it. FG will not benefit much from transfers; Labour voters will prefer it to FF, but for groups further to the left FG is little more attractive than FF. Labour will be the main beneficiary of transfers. Groups to its left will prefer it to FF or FG; FG will prefer it to all other parties; even FF voters may rank it second, though many FF votes will become non-transferable once the last FF candidate is elected or eliminated. Overall, though, transfers between any two parties don’t look likely to be especially strong this time.

(iv) vote management. In the past this has been an issue only for FF and FG; other parties simply have not had enough votes to need managing. This time FF is likely to witness intense battles in many constituencies as two strong candidates, sometimes two TDs, fight for the (at most) 1 seat the party can win, with the risk that if things become too bitter, the internal transfer rate will become so low that neither candidate wins. FG has reasonable experience of the occasional need to manage votes, and that will stand it in good stead this time. The main question mark is over Labour, which according to the poll figures has a good chance of winning 2 seats in many constituencies, something that will in some cases depend on incumbents, who are accustomed to running alone and projecting themselves as much as the party, agreeing to share the votes equitably with a running mate. Time will tell how well the party adjusts to this new environment.

Putting these factors together, it is likely that for a given vote total Labour will do best in terms of seats, FG next best, SF third and FF worst. So, when the next opinion poll appears, to estimate the seat return for each party, give FF 1 seat (the outgoing Ceann Comhairle, assuming he stands again), and distribute the other 165 seats according to these principles:

(a) start by calculating the proportionate share of the seats that that share of the votes would lead to – eg if a party has 22% of the votes, 22% of the seats is 165 * 0.22, which is 36.

(b) for FF take a 2-seat range around the result – eg if it is shown with 19% of the votes, 19% of 165 is 31, add 1 for the Ceann Comhairle, leading to a prediction of 30–34; if it’s recorded with 26% of the votes the prediction would be 42–46.

(c) for FG add around 4 seats and take a range of around 2 seats above the result – eg if it is shown with 30% of the votes, 30% of 165 is 50, leading to a prediction of 52–56; if it’s on 36%, the range would be 61–65.

(d) for Labour add some seats (approx 2 if its vote is below 20%, 4 if its vote is in the 20s, 6 if it’s over 30%) and take a range of around 4 seats above the result – eg if a poll finds it has 21% of the votes, 21% of 165 is 35, giving a range of 39–43; if it’s on 28% the range would be 51–55.

(e) for SF add 1 and take a 2-seat range around the result – eg if it is shown with 10% of the votes, 10% of 165 is 16, leading to a prediction of 15–19; if it’s recorded at 16%, the prediction is 25–29.

Thus, if Labour and FF were each to win 25% of the first preference votes, we would expect FF to win not much more than 25% of the seats (around 40–44) while Labour could expect a larger bonus (around 45–49 seats in all). The best estimate, if we had to give a specific number, will be the mid-point of the range. There’s little point in trying to estimate the seats of smaller parties (Greens, United Left Alliance) or Independents, as at such small numbers local factors become more important.

For example, applying these principles to the results of the Red C poll published in The Sun last week (FF 13%, FG 32%, Labour 24%, SF 16%) gives a distribution of the order of FF 20–24, FG 56–60, Labour 44–48, SF 24–28.

Trying to convert votes into seat estimates is always something of an art rather than a science under any electoral system based on small constituencies, especially PR-STV, but national-level conversion is not only much more straightforward but is also likely to prove at least as accurate as making predictions for each of the 43 constituencies and totalling these.

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Posted 7 Oct 2010

For how long will FF be in opposition?

It’s hard to find anyone who does not expect FF to be in opposition after the next election. And things could hardly be otherwise: when the economy is in the dire straits it is, and the major party of government has held office for 21 of the previous 23 years, it would be extraordinary if there were any chance that it might remain in power. Both FG and Labour have ruled out any possibility of coalition with FF, and it’s impossible to envisage a scenario in which FF, and a shrunken FF moreover, is not evicted from office at the next election.

But for how long will FF be in opposition? FF is not a party accustomed to spending time there. Its longest spell on the opposition benches is still the nearly six years between its foundation in May 1926 and its entry into government in March 1932. Since then, the party has never spent more than one consecutive Dáil term in opposition and the longest spell it has been out of power remains the 4 years and 4 months of the Cosgrave coalition in the mid-1970s.

In the worst case scenario, that could change completely in the years ahead. At the next election, according to all the recent polls, the party will do well to reach 50 seats. Such a crushing defeat could leave it on the outside not just for one Dáil term but for ‘a generation’, as the cliché has it (this seems to mean anything between 10 and 30 years). It will take a great deal of renewal to bring the party back to a situation where it is able to challenge seriously for its usual 70+ seats, and a fair bit of time for the public memory of its shortcomings in office to fade.

And yet, it is possible to envisage an alternative scenario in which FF’s time in exile turns out to be surprisingly short. Clearly, the next government will be a coalition between the other two main parties (whether a FG–Labour coalition or a Labour–FG coalition remains to be seen). But how durable would that government be? The economic fundamentals will remain the same, and anyone who votes for FG or Labour in the belief that a change of government will put an end to cuts, or will guarantee that future cuts are painless, will rapidly become disillusioned. The parties will not be making choices about how to distribute the fruits of growth but about how heavily the axes will fall in various areas. Thus, even a cohesive and united coalition is likely to incur unpopularity from a very early stage.

That might not matter if the coalition really was united, because then it could make decisions for the medium term and hope that the appropriate measures might restore the economy to some degree of health in five years’ time. But would such a coalition be united?

The two parties have fundamentally (one might almost say ideologically except that, as we know, Ireland is an ideology-free zone) different approaches to the current crisis. FG advocates deeper cuts in spending and few or no tax increases, Labour wants tax increases to play a significant part in reducing the deficit; FG wants spending and borrowing reduced as rapidly as possible, Labour favours further borrowing to provide stimulus to the economy, as outlined by Éamon Gilmore at the weekend. There is little doubt that Labour could not live with FG’s preferred method of dealing with the economy, and that FG could not live with Labour’s. The two parties will thus have to find a compromise, and the chances are that this middle way will not look hugely different from the approach being taken by the current government. In office, then, they might find themselves implementing much the same policies as the ones they criticised so vehemently from opposition – the difference being that FF actually believes in that set of policies whereas both FG and Labour would have some distaste for them. It might not be long before many members of both parties begin asking why they should incur such unpopularity for policies to which at bottom they do not feel any attachment.

If the will to make a government work is there then differences on details of policy may not matter, but it is not clear that either side would have that will, and recent attacks on Labour by Alan Shatter and Fergus O’Dowd in particular suggest that FG feels a degree of resentment and irritation, if not outright anger, towards its putative partner.

Thus, it is not at all far-fetched to see a scenario in which the next election – 2011, say – produces a coalition between FG and Labour (assuming for the moment that the former is the larger party, though the probability of this is declining all the time), but this government lasts for only a short time before Labour withdraws, unable to accept a particularly swingeing set of FG proposals for cutting public spending. After the ensuing – 2012 – election, a now once-again coalitionable FF, led by Brian Lenihan (personally completely untainted by the recklessness of the ‘if I have the money I spend it’ era), shorn of any other minister who might remind the public of the bad old days (Dermot Ahern, Brian Cowen, Noel Dempsey and Éamon Ó Cuív would all either be writing their memoirs or firmly relegated to the back benches), and exuding a new-found humility, comes to a coalition arrangement with Labour after the latter has driven a hard bargain. The public sector unions back the programme of the FF–Labour government as representing the least bad option, international markets display relief that there is finally political stability, and Éamon Gilmore enters the history books as the first Labour Taoiseach.

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Posted 28 September 2010

What’s the point of political reform?

This rather provocative title is intended to raise the issue of just what end it’s hoped will be served by political reform.

Possible ends could be classed as process-oriented or outcome-oriented. Regarding the former, having a political system that is more transparent and participatory is worth trying to achieve in its own right, regardless of whether anything actually changes ‘on the ground’. The fact there was very little talk of political reform while the economy was (or seemed to be) booming might suggest that, while process considerations no doubt play some part in the minds of reformers, for most these are a secondary consideration, and they are either seen as not important or as important primarily because it is hoped they will lead to better outcomes.

The outcome-oriented arguments for reform suggest, or hope, that if the political system had been reformed ten years ago the country would not now be in its current difficult economic position. The economic crisis leads many to assume that there must be something fundamentally wrong with the political system – otherwise, how could things have gone so wrong? For a few, apocalyptically, the economic crisis betokens a rotten and corrupt political system.

But attempting to identify cause and effect between political system and economic mismanagement is not so easy. The economic mismanagement occurred primarily between 2001 and 2008, when the banks were allowed to borrow heavily abroad so that in turn they could lend money to property developers to purchase buildings or land whose value was artificially high and was to collapse at the end of the decade, leaving the banks unable to collect the loans they had given out and thus unable to pay back the loans they had taken out. Meanwhile, government entered into spending commitments predicated upon property-related taxes remaining at their high levels, leaving a huge budget deficit once these taxes dried up. Government also devised a whole range of tax breaks and incentives to encourage the building of dwellings (especially apartments) and hotels, leading to the current spate of ghost estates and zombie hotels.

With hindsight, it’s all so obvious what errors were made. Government showed no awareness of the shaky foundations upon which its spending plans were based or of the total inadequacy of the regulatory regime, if it can even be called that, that it had put in place supposedly to ensure that what happened could not possibly happen. But what changes to the political system might have prevented this?

Most of the changes discussed so far on this site don’t seem to carry the potential to have had much bearing on any of this.

No-one in any country expects MPs to spot a macro-economic problem that no-one else has noticed. MPs are rarely economic experts in their own right, but they are usually quick to pick up on concerns being expressed by those who are experts, whether in the state machinery or an academic or journalistic commentator. If the real experts had been loudly expressing concerns in the 2001–08 that economic policy was leading inexorably to crisis, TDs would have picked this up. If the Financial Regulator, the Central Bank, the civil servants at the Department of Finance, and independent (academic and journalistic) commentators had been shouting from the rooftops about the wrong track along which the economy was heading, and TDs had been too immersed in their constituency work to notice, then it would be reasonable to start thinking of ways in which to reduce TDs’ constituency focus. But, with a few exceptions among the commentariat, that wasn’t the case. And while other reforms, including many discussed elsewhere on this site, could be seen as likely to result in improvements to policy, there seems no reason to think that, with one exception, they would have prevented the economic debacle.

The one area where it seems that a reform could have made a difference lies in the area of party finance. Fianna Fáil, as the main government party of the period, was a large-scale recipient of financial donations from companies involved in building and property development. Without alleging anything nefarious, it is asking a lot to imagine that the party’s heavy reliance on finance from this sector, and its promotion and facilitation of policies sought by the sector, are unrelated.

This might suggest that a thorough reform – and the word ‘reform’ might be inadequate to sum up what is needed – of party finance should be a priority. This goes beyond simply banning corporate donations, because there is little substantial difference between a property developer donating heavily through a company or as an individual – it’s not clear what is achieved by banning the former while permitting the latter. It would require the banning of all donations over a very small amount – around €100, say – and the expansion of state finance to fill the gap. Giving more public money to parties at a time of cutbacks would not be popular, to say the least, but that is one of the paradoxes of state financing of political parties: when it is most needed, public resistance is highest. The cost of such a party finance regime over the past ten years, had one been in place, would be a minute fraction of the current cost of bailing out the banks.

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Posted 6 September 2010

 

Subject: Representation and whether it can be achieved only territorially

Context: consistent complaints from some quarters that TDs are excessively oriented towards local rather national concerns

Title of lead post: Do we need geographical constituencies?(MG, 6 September 10)

 

Do we need geographical constituencies?

Concerns are raised from time to time, not just in this country, that geographical representation in parliament creates behaviour among legislators that is not consistent with the national interest. Legislators elected, under whatever electoral system, from geographical constituencies have an obvious incentive to put the interests of their constituents first even when a “rational” decision-making process might require acknowledging that not every local interest should be defended to the death. They might indeed argue that this is not merely a matter of responding to electoral incentives but that protecting and advancing the interests of their constituents is part of their job.

For example, if a country has too many hospitals, in the sense that resources are spread too thinly among them and that the overall health of the nation would be better protected by having fewer but bigger hospitals – as some say is the case in this country – a national policy-maker might conclude that smaller hospitals should be closed and their resources transferred to larger regional hospitals, but the MPs for the constituencies where hospital closures are sought are likely to resist such closures as strongly as they can.

In chapter 9 of his book “The Concept of Constituency: political representation, democratic legitimacy, and institutional design” (Cambridge University Press, 2005), Andrew Rehfeld argues in favour of randomly-constructed rather than geographically-constructed constituencies. Upon reaching voting age, everyone would be randomly allocated to a constituency, to which they would belong for the rest of their life. In the Irish case, for example, leaving aside any other possible changes in Dáil size, electoral system or constituency side, there might be, say, 33 constituencies, each with 5 members elected under PR-STV as at present, each containing approximately 100,000 people. (Though in fact Rehfeld is against any form of PR and believes that each constituency should return only 1 MP.) Each electorate of 100,000 people would be, in effect, a random sample of the population of the entire country, and every small region of the country would be likely to contain members of each of the 33 constituencies. Among other things, this implies that voting behaviour in each constituency would be likely to be very similar. Non-geographical constituencies may seem an outlandish concept but they are commonly used for upper houses, such as Seanad Éireann for example.

Rehfeld suggests that this might not be fully feasible until internet technology and access have advanced to the point where geographically dispersed groups of people, which is what constituencies would now be, can meaningfully discuss matters of common interest – though he expects this to happen sooner than we think.

The argument in favour is that each MP would now have an incentive to pursue policies that are good for the nation as a whole. MPs would, in effect, be operating as if behind the famous Rawlsian “veil of ignorance”, so when it came to upgrading schools, for example, they would have no incentive to try to get particular schools moved up the qualification list, because this would probably cost them more votes than it gained them. Instead, their incentive would be to put in place a decision-making method that sees resources allocated to the school that at any moment is the most deserving in terms of a set of objective criteria. Likewise, no MP would be lobbying to have public or private investment directed at a particular part of the country; instead, it would go wherever makes best sense for the nation as a whole.

There are also difficulties, some of which Rehfeld addresses, though he acknowledges that his scheme is not fully fleshed out. One obvious question is: if education / health / transport services in an area seem to be failing, whom do people contact? Maybe no MP would be contacted on the matter, as none would have much responsibility for the affected area, or maybe every MP in parliament would be contacted as all would have a few constituents in the area. Would this scheme mean that all decisions are made in “the national interest”, or is that concept too contestable to be useful? Might the outcome be not that policy outputs are in everyone’s (ie the broad national) interest but that geographical peripheries and perhaps other minorities, now left without anyone with a responsibility to defend their interests specifically, would lose out systematically to majorities and to the centre?

Is this an idea that could be made to work? If not, does it mean that the benefits of geographical constituencies, with MPs who see their representational role as consisting at least partly of defending and promoting the interests of their own small patch of the country, outweigh the disadvantages?

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Posted 26 July 2010

Subject: cohesion and discipline of parliamentary parties

Context: follow-up to post of 22 July, asking what would be wrong with a situation where TDs would become more responsive to a multitude of local and national pressures when deciding which way to vote on some issue in the Dáil

Title of lead post: Lucinda Creighton and reform (Jane Suiter, 21 July 10)

 

The simple answer is that parliamentary systems of government require cohesive parliamentary party groups (PPGs). In presidential systems such as the USA PPG cohesion is not essential, but only one European democracy (Cyprus) operates as a presidential system. In parliamentary systems effective government (effective in the sense of governments being able to get their legislation through) requires that members of the government PPG(s) vote en bloc.

That does not necessarily mean that they simply have to accept a line dictated by someone else, because PPGs do have some role, albeit a subordinate or veto player one, in deciding what the party line should be in the first place. Cohesion does not mean that TDs all tamely accept the line of the ‘party bosses’; it means that they all accept the majority line on each issue, knowing that even if they are in a minority on some issues they will be in the majority on most, and in the long run this agreement to operate as a cohesive bloc increases the power of each of them. To quote John Aldrich again, ‘parties allow members to win more of what they seek, more often and over a longer period’.

In other areas there is a lot of scope for government backbench TDs and opposition TDs to play a much more meaningful role in the parliamentary process, through more powerful committees that select their own chairs (the chairs to be distributed proportionately among the parties) and that have the opportunity to develop laws rather than simply discuss government legislation. That procedure, where a committee develops a law on a cross-party basis and only then does it go to the plenary session of parliament, is widespread across Europe; in this country the sequence is reversed, to the advantage of government and the detriment of parliament. But, right across Europe, government PPGs vote en bloc on government legislation, and government could not function without this being the case.

Cohesive bloc voting does, there’s no disputing, reduce the individual accountability of MPs, as is pointed out in a post above and indeed as was a complaint of Moisei Ostrogorski writing over 100 years ago. It also gives an often meaningless and ritualistic flavour to Dáil debates. But the alternative scenario is one where each government TD regards his or her vote as a bargaining chip in a struggle to extract selective benefits. Even as things stand there are complaints that TDs are unduly focused on the local rather than the national, but this concerns the way TDs spend their time, not the way they vote on legislation or matters of national policy. Were we in a situation where TDs could bargain over their votes on matters coming before the Dáil, we would find the Taoiseach of the day compelled to ‘work the phones’ before major votes and deal with endless demands for ‘pork’ for the constituencies of wavering deputies, and those concerned about local considerations having an excessive impact on the behaviour of TDs would look back nostalgically to the way things were in 2010.

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Posted 22 July 2010

Subject: cohesion and discipline of parliamentary parties

Context: suggestions that the rigidity of the party whip in the Dáil should be loosened.

Title of lead post: Lucinda Creighton and reform (Jane Suiter, 21 July 10)

 

Removing the blanket operation of the party whip in parliamentary votes seems to be a popular idea with the public in many countries. No doubt there are many people who feel that it would be better if TDs decided each issue on its merits, putting the best interests of the country first rather than having to do what the party whip orders them to. Would we not get better policy outcomes if this happened?

In a word (or five words): almost certainly no, we wouldn’t. A situation without party whips would be akin to a parliament of independents, the disadvantages of which hardly need spelling out. Relaxing the whip for issues that can be seen as really non-partisan (eg, in the UK there is a tradition of holding ‘free votes’ on moral issues that cut across party lines) could be seen as harmless enough, and not having a ‘party line’ to follow on Oireachtas committees makes sense, but on measures that are central to a government’s economic programme, for example, it is hard to imagine many unwhipped TDs supporting tax increases or spending cuts.

On which issues should party discipline be relaxed? Obviously, each TD would have an incentive to say ‘it should be relaxed on those issues where I am in a minority within the parliamentary party; but when I’m in a majority, all TDs should be compelled to vote for the majority’s stance’. Party discipline would be impossible to enforce on any issue in such a situation.

TDs operate as disciplined blocs because they know it is in their interest to do so, not because the whip compels them to. In John Aldrich’s much-quoted words, ‘parties allow members to win more of what they seek, more often and over a longer period’. We need to bear in mind that parliamentary party group discipline is endogenous, not exogenous, ie it’s a rule chosen by the TDs, not something that an external force is imposing on them. It works only if every TD is subject to the same discipline; if some TDs are allowed to vote as they want, why (as lobby groups would demand to know) would any other TD heed the whip?

It’s naive to imagine that without the presence of the party whip TDs would become freer to prioritise the ‘national interest’. Any initial sense of liberation would soon prove illusory. As G K Chesterton supposedly said regarding religion, those who stop believing in god don’t believe in nothing, they believe in anything. Likewise, TDs in a weakly whipped parliament would discover that a relaxation of the party whip would not leave them free to be guided by nothing but their conscience but, rather, would leave them open to heavy pressure from a range of lobbies, both national and local, of the sort experienced by their US counterparts.

At present such groups make little effort to influence TDs’ voting behaviour in the Dáil because they know that due to the strength of the whip system there is little point in even trying to do so. If such groups scent weakness, as when several FF backbenchers sent out signals last month that they might not support the government’s bill to outlaw stag-hunting, the pressure increases dramatically.

If TDs did not vote as party blocs, it would be (even more) difficult after an election to tell who has got a mandate to do what. The effect of a vote for a candidate of, say, FF, would be unpredictable if he or she were free to pick and choose when to vote with FF in the Dáil. From the voter’s perspective a parliament operating without parliamentary group discipline would bring few benefits to outweigh the disadvantages. In the extreme case, if parliamentary party discipline broke down altogether, TDs would have to ‘log-roll’ (ie build alliances of mutual support) on every issue, or to put together agreements covering a number of issues, with a general air of back-room deals and unpublicised trade-offs characterising the work of parliament and the constant risk that TDs will defect from the agreement once their own projects have been secured. Parliamentary party groups with enforced discipline to ensure cohesive voting behaviour in effect institutionalise log-rolling and make ad hoc issue-by-issue coalitions unnecessary.

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Posted 6 July 2010

Subject: electoral system

Context: Irish Times article by Ed Walsh urging a change in the electoral system

Title of lead post: Would electoral reform improve the quality of our TDs? (David Farrell, 5 July 10)

 

The Ed Walsh article mentioned above in today's (6 July) Irish Times says:

"None of the new democracies of central Europe chose to adopt the Irish electoral system. All decided to introduce some form of list system, which provides a means by which national movers and shakers can be brought into government. Typically half the seats in parliament are reserved for those who are elected, as in our case, from local constituencies and the other half from lists of well-known national figures."

While it's good to see people coming up with ideas for reform, surely a bit of fact-checking in advance would make for a more credible argument. Far from being 'typical', that kind of mixed system is used only in Germany and Lithuania, while Hungary has a convoluted variation on the theme and in Bulgaria 13 per cent of MPs are elected from single-member constituencies and the other 87 per cent from lists. Moreover, in Lithuania voters can choose among the candidates on the list, thus generating the kind of intra-party electoral competition supposedly responsible for so many ills here. And in Germany the great majority of list MPs, far from being national 'movers and shakers' with no interest in or responsiveness to any unit below the nation, are firmly attached to, and run in, one of the single-member constituencies, as indeed they do in the mixed systems of New Zealand, Scotland and Wales.

To repeat a point made before, the Irish electoral system of PR-STV is very much in the European mainstream in that it embodies the features that characterise the electoral systems of most EU member states, especially the smaller ones: (i) PR in multi-member constituencies, (ii) all MPs elected from geographical constituencies, (iii) voter power to choose among candidates of the same party.

[Follow-up: in a subsequent article in the Irish Times, Eoin O’Malley referred to the ‘obsession’ that some Irish establishment figures seem to have with the electoral system, which he describes as ‘disturbing in its ignorance’. And in a ironic twist, Dr Ed Walsh had a letter in the same day's Irish Times (6 July) criticising another contributor for allegedly insufficient fact-checking.]

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Posted 17 June 2010

Title of lead post: Would FG be well advised to change its leader? (MG, 17 June 10)

Subject: Fine Gael parliamentary party rules

Context: Imminent FG parliamentary party vote of confidence in leadership of Enda Kenny

 

The question has been asked as to what happens if the FG parliamentary party divides evenly on the motion of no confidence in Enda Kenny. The FG constitution states (para 49 (ii)) that in the case of the vote of confidence that takes place automatically within two months of a general election at which the party does not enter government, the leader shall resign ‘if he/she fails to secure a majority’, so in those circumstances the leader would have to stand down after a tied vote. The same article does not explicitly state the same condition for those motions of no confidence in the leader that may be put down at other times, and nor does it say anything about the chair being able to cast a second vote in such or indeed any circumstances. So the constitution may provide scope for argument if the parliamentary party vote really did produce a tie, with the prospect of a trek to the High Court. But surely that could not happen?

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Posted 16 June 2010

Subject: Fine Gael leadership

Context: Challenge by Richard Bruton and other leading Fine Gael TDs to the leadership of Enda Kenny

Title of lead post: Would FG be well advised to change its leader? (MG, 16 June 10)

 

Would FG be well advised to change its leader?

If FG asked the PSAI for its opinion on whether it should change its leader, would Irish political science be able to offer any evidence-backed advice? There are (as usual) arguments on both sides.

Someone alternative such as Richard Bruton may be in some sense a ‘better’ leader, ie a more credible Taoiseach-in-waiting VERSUS the benefit of getting a ‘better’ leader could be outweighed by the cost, in terms of public image and internal cohesion, of the process of ousting the existing leader.

FG is weak in urban areas, especially Dublin, and hence needs to have a leader who can connect better with that growing section of the electorate VERSUS there is no point in having a leader who boosts the party’s support in one region of the country if at the same time support drops by an equivalent amount in those areas where the existing leader was an electoral asset.

Many FG members and elected representatives have found that voters tell them, in effect, ‘I’d vote for you if only you had a better leader’, and opinion polls consistently show deep reservations among the electorate about Enda Kenny’s credentials as a potential leader VERSUS for some voters this may be a convenient rationalisation and in fact they would probably not vote FG no matter who its leader was, and moreover the 2002 election study (see The Irish Voter) suggested that party leaders have at most a marginal effect on voting behaviour, shown also by the high personal ratings both Mary Harney and Gerry Adams have had at various times in recent years without this seeming to make any difference to their respective parties’ support levels.

It is surely an indictment of the leader that at a time when the government is at historically low levels of support the main opposition party appears to be making no headway at all VERSUS this may be like a national football association believing that success is its due and sacking the manager every time it fails to win the World Cup, even though experience shows that its performance seems to be much the same no matter who the manager is, suggesting that there are deeper questions to be addressed.

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Posted 11 June 2010

Subject: Possibility of a leftwing government after next election

Context: Opinion poll showing Labour, for the first time ever, in the lead

Title of lead post: Today’s opinion poll: perhaps as much good news as bad for the government? (David Farrell, 11 June 10)

 

It’s fair to say there’s a good deal of scepticism as to whether those figures would materialise in an actual election, given (a) the inadequately justified ‘adjustment’ applied by IPSOS / MRBI, which seems especially inappropriate now that we’d expect an under-estimating of FF support rather than an over-estimating as in the past; (b) one poll could always turn out to be a rogue; and (c) as Jane S observes, given the track record we would want to see any poll finding validated by an actual election result somewhere to feel confident about it.

Nonetheless, even the unadjusted figures make Labour the strongest of the three parties (29% compared with 27% for FG and 21% for FF), and that does the raise the question of whether Vincent Browne’s hope of a left-wing government, discussed by Michael Marsh in his 9 June post on this site, could be somewhere close to realisation.

Sticking with the adjusted figures, Labour on 32% and SF on 9% already takes the putative alliance over the 40% mark. SF voters are likely to transfer to Labour more strongly than to any other party, though we wouldn’t expect reciprocation under present circumstances, and Labour will benefit to some extent from FG transfers. Add in other left-wing TDs – Joe Higgins, maybe one or two other Socialist Party TDs, possibly a PbP TD or two, Finian McGrath – and the sum total might not be far short of the requisite 83. Perhaps the Greens would be a potential part of the alliance too: with the current government having no chance of re-election, it’s unlikely that the Greens will campaign for its return but rather, during the next election campaign, they will operate as free agents open to participating in any government receptive to their policy agenda, just as they did in 2007.

Or perhaps there’s an air of unreality about this, in that SF may still not be regarded by any of the other parties as coalitionable, a coalition made up of, or at least reliant on, so many elements would look anything but stable, and as Michael Marsh observed the left remains unusually weak in this country in terms of political culture as well as party strength.

But it does highlight the question of just what government will emerge after the next election. FG seem to have convinced themselves, in the face of a lot of evidence, that a FG majority government is somehow a possibility, and as a consequence they’ve taken up policy positions with no regard for these policies’ post-election compatibility with Labour policy and in some cases have expressed views that would be pretty much unacceptable to Labour. A FG–Labour (or should that now be Labour–FG?) coalition is still very much the bookmakers’ favourite but there would be a lot of internal tension, in terms of ideological incompatibility rather than just differences over the details of day-to-day policy. In policy terms FF might be a more compatible partner for both FG and for Labour than the other main opposition party is, but almost certainly both FG and Labour will explicitly rule out any coalition with FF after the next election, and they know they would be lynched (metaphorically) by their supporters if they did help put FF back in government.

As things stand the next election looks like being one of those where the voters can have no real idea what the possible governmental options are. Maybe we will see a clearer definition of alternatives as election day approaches.

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Posted 2 June 2010

Subject: a new Irish constitution

Context: conference on constitutional law that suggested Ireland does not need a new constitution, followed by criticisms that this was too timid and conservative a response to the current situation

Title of lead post: (Does Ireland need a new constitution, Eoin O’Malley, 22 May 10)

 

‘Changing the constitution’, or drawing up a new constitution, is a bit vague and general. I’m not sure that too many people who are familiar with the 1937 constitution see any merit in the idea of ditching it and drawing up a new constitution. The reason is not an unreasoning attachment to the status quo but, rather, the absence of any convincing argument to the effect that there is something in the 1937 constitution that can plausibly be blamed for the current economic difficulties or indeed for any of the less positive aspects of Irish politics. What exactly do we want to do that the current constitution prevents us from doing? In broad terms, constitutions lay down a framework and rules regarding how laws and policies are made, but they cannot ensure that the ‘best’ policies are chosen.

Economic policy-making has gone badly wrong in this country in the past decade. But the same is true in the UK, USA, Spain, Greece, Italy, Portugal, Latvia, Romania, and a number of others – countries with a whole range of different electoral and institutional arrangements. A country that appears to have come through the world economic downturn relatively unscathed is Canada, where the executive dominates the legislature, and where MPs vote solidly along party lines in parliament and also appear to do even more constituency work than their Irish counterparts. That doesn’t mean that any other country adopting Canadian-style institutional arrangements will automatically acquire Canadian levels of prudential governmental performance. What it does suggest is that the behaviour of policy-makers and the expectations of voters are not determined entirely by institutional arrangements.

When something has gone badly wrong, it’s always tempting to press a few of the nearest buttons – change the constitution, change the electoral system, let’s end party bloc voting in parliament – in the hope that in some unspecified way things will get better. But unless there is some structured argument setting out the precise effects that we expect to follow from a particular change, and why we can expect those effects to follow, then the calls to press a few buttons are akin to suggesting rolling the dice afresh and hoping for better luck next time.

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Posted 2 June 2010

Subject: whether ministers need to be TDs

Context: suggestion that there should be an increase in the number of ministers appointed from outside the ranks of TDs

Title of lead post: Intellectuals against ideas (Dan O’Brien, 27 May 10)

 

Should ministers be appointed from outside parliament? As has been observed (John Coakley in particular has been making this point for twenty years or so, and recently Dan O’Brien has been advancing the same argument), the recruitment of ministers virtually exclusively from the directly-elected house of parliament is one of the most unusual features of the Irish political process. The most recent figures I saw suggested that about 75 per cent of ministers across Europe were present or former MPs, ie most ministers are ‘politicians’ in the broad sense, but only in Ireland is being a current MP an essential qualification for becoming a minister.

This suggests strongly that broadening the pool from which ministers are selected would be a good idea, and I think it is. The obvious place to start would be for Taoisigh to use the power already given to them to appoint two ministers from the Seanad (which together with their power to appoint 11 senators gives them power to make any Irish citizen a minister).

There are counter-arguments. One is that ministers need political skills as much as policy expertise (the latter can, in principle anyway, be ‘hired’ from policy advisers or from the civil service), and that a minister’s job is to ‘sell’ a policy to the stakeholders and to the public rather than simply to devise policy. Another is that it may now be too late to make this change in this country, in that the public has come to expect ministers to have some kind of personal mandate from the electorate and that there may be legitimacy problems for unelected ministers trying to put through unpopular policies. This political cultural expectation applies a fortiori to members of the parliamentary parties, who see government positions as steps on the promotional ladder and would react with considerable displeasure to the sight of ministerial positions being given to ‘outsiders’, with the prospect of such ministers meeting considerable resistance when they try to secure support from the parliamentary party for their plans. The fact that it is already possible for two non-TDs to be appointed to cabinet, and yet this has happened on only two occasions since 1937, shows us that the barriers are to be found in the unwritten rather than the written part of the constitution.

Such an experiment might not work, but the cost of one or two unsuccessful appointments would be low, and if the right individuals were appointed to the right positions the results could be very positive and build support for the idea. However, given that it is hardly likely ever to be made compulsory for the Taoiseach of the day to appoint a certain number of non-TD ministers, I think this development would require a change of culture more than a change in the rules if it is to occur.

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Posted 1 June 2010

Subject: electoral system reform

Context: continuing debate as to how far PR-STV can be seen as the source of the country’s ills

Title of lead post: Electoral reform is not a panacea, but it will have effects (Dan O’Brien, 19 May 10)

 

“If PR-STV is such a great system why isn’t it more widely used?”

It’s a plausible point, though one that could be levelled against almost every system, given that most have their own individual features at the level of detail. What can be said is that PR-STV embodies the features that characterise the electoral systems of most EU member states, especially the smaller ones: PR in multi-member constituencies, all MPs elected from geographical constituencies, voter power to choose among candidates of the same party. That doesn’t prove that systems based on these principles are ‘best’, but it does rather suggest that the basic design of the system is not inherently outlandish or eccentric. It also suggests that we should pause before ascribing causal responsibility for any supposedly unusual feature of Irish politics to the electoral system, or before assuming that if we move away from a Denmark–Finland–Sweden type of electoral system we are somehow more likely to have Denmark–Finland–Sweden type politics.

Anyway, as David F and Liam W have pointed out, the extent to which an electoral system is employed is not necessarily an indicator of ‘merit’, given that many factors determine electoral system choice. The current debate in the UK reminds us of this: electoral reform has got onto the agenda only because of the balance of political forces after the 2010 election, and if the UK moves to the alternative vote as a result of the process in train, this will not be because anyone thinks AV is the best system. Rather, it will be because it is the furthest the Lib Dems could get on the road towards their desired objective of PR, and the most the Conservatives were prepared to concede away from their preferred model of single-member plurality (‘first past the post’).

Sad to say, in the imperfect world in which we live, a country’s use or non-use of a particular electoral system is not necessarily based on a solemn judgement by its people, politicians and academics as to what the ‘best’ system is. Decisions tend to be based on a combination of factors, including inertia, familiarity, imperfect information, some sense of the national interest, and consideration of partisan advantage.

Thus, the reason PR-STV was adopted in Ireland was not because there was a thorough examination of the merits of all known electoral systems and PR-STV was rated highest; rather, it was chosen because pretty much every political actor favoured PR, and STV was the only form of PR that was at all familiar to people in Ireland in the early 1920s. Likewise, a major reason it is not widely used around Europe is not because countries have thoroughly investigated its qualities and rejected it but because it is not well known in most European countries.

The 1959 and 1968 referendum debates in this country were characterised by wildly exaggerated claims on both sides as to the likely consequences of acceptance or rejection of the proposal to change to single-member plurality. If there is another referendum, let’s hope that the arguments take account of the mass of evidence now available as to how electoral systems do in fact function: what aspects of politics we can expect to change, and what aspects we should not expect to change, if the electoral system is altered.

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Posted 14 May 2010

Subject: electoral system reform and constituency work

Context: continuing debate as to whether the PR-STV electoral system is the cause of TDs’ attention to constituency service, and whether constituency work is a bad thing anyway

Title of lead post: RTE Aftershock on political reform (Jane Suiter, 11 May 10)

 

The point in dispute is not whether TDs pay very close attention to their constituencies, which everyone agrees they do, but whether the electoral system has anything to do with this.

Some of what TDs do as constituency representatives is pointless and a waste of time, but that doesn’t mean all of it is. I won’t repeat arguments that I’ve made elsewhere but I do believe that TDs’ responsiveness and availability to their constituents is more of a strength than a weakness of the Irish political system.

I don’t know about hand-delivery of passports in comparative perspective, but MPs in most countries are expected to represent actively the constituents and the constituency that elected them. This is a prominent feature of studies of the work of MPs in Canada, France, and the UK, to give just three examples, and in fact the representational role looms large in most countries.

And it’s not just backbenchers. Take this example from the memoirs of a former foreign minister:
"Foreign colleagues were amazed in an interval of some international conference to watch me signing replies to individual constituents on their personal problems, and to learn that I had earlier dictated these replies myself."
If the writer was a former Irish Minister for Foreign Affairs, no doubt there are those who would cite this statement as evidence of the baleful impact of PR-STV upon the lives of ministers – but he wasn’t. (Take a guess at the country in question – answer at bottom of this post.)

So, (i) close contact between MPs and constituents is expected and delivered in countries using a range of different electoral systems, and (ii) there are countries, such as Denmark, Finland and Sweden, that use electoral systems very similar to Ireland’s and in which MPs do not, as far as we know, attend closely to the micro-needs of individual constituents. That might suggest that any supposed link between electoral systems and MPs’ constituency orientation is not as clear-cut as some people assume, and that changing the Irish electoral system is likely to have little or no impact on this.

(The minister mentioned above was Douglas Hurd, former UK Foreign Secretary, as quoted in Tom O’Connor and Anthony O’Halloran’s book, Politics in a Changing Ireland: a tribute to Séamus Pattison (Dublin: IPA, 2008), p. 83. Hurd had a very safe Conservative seat (it is currently held by David Cameron) and was under no risk of losing the seat to a candidate of another party, let alone losing it to a candidate of his own party.)

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Posted 12 May 2010

Subject: electoral system reform

Context: RTÉ television programme ‘Aftershock’ with several suggestions for political reform

Title of lead post: RTE Aftershock on political reform (Jane Suiter, 11 May 10)

 

Interesting to see the Dan O’Brien module in the Aftershock programme arguing that with a different electoral system, politics in Ireland might become more like politics in such countries as Denmark, Finland and Sweden.

A little research into patterns of electoral system usage might have led to second thoughts about this argument.

Such research would have discovered that all three of those countries use electoral systems that possess the two qualities that those who criticise the record of PR-STV in Ireland seem to find most objectionable:

(i) the fact that in Ireland all TDs are elected from, and hence represent, geographical constituencies rather than being elected from a national list. In Denmark, Finland and Sweden (and in most other European countries) all MPs are elected from local constituencies and in the great majority of cases they are people who have their roots there. (See for example the biogs of Finnish MPs at http://web.eduskunta.fi/Resource.phx/parliament/members/byconstituency.htx)

(ii) the fact that in Ireland candidates of the same party are in electoral competition with each other and hence TDs are vulnerable to losing their seat to a running mate. In Denmark, Finland and Sweden the electoral system is based on ‘open lists’ under which voters cast their vote not just for a party but for an individual candidate on the list. Thus, in those countries (and in fact in a majority of EU countries), just as in Ireland, candidates need to compete with their running mates for votes, and incumbent MPs can be ousted by a running mate.

Whatever the reason for the differences between politics in Ireland and politics in Denmark, Finland and Sweden, it’s hard to see how these can be caused by electoral system differences. This seems to be a case, and by no means the first one, of someone assuming that a country’s electoral system has a far greater impact on all aspects of its politics than it actually does.

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Posted 28 April 2010

Subject: How to fill casual vacancies in Dáil Éireann

Context: continuing debate over whether casual vacancies should be filled by by-elections, by the countback method, or by the substitutes’ list (debate following post of 26 April, below)

Title of lead post: Should by-elections be abolished? (MG, 26 April 10)

 

On the length of time for which a seat can lie vacant: yes, it’s disturbing to hear seemingly informed speculation to the effect that the three seats currently vacant (Donegal SW, Dublin S, Waterford) might simply be left vacant until the next general election, which could be over 2 years away. As Gary M says, this amounts to depriving the people of those constituencies of the same level of representation as people elsewhere have. Fear of its Dáil position being decisively weakened is only one factor in the government’s behaviour; it’s worth recalling that (leaving the second world war cases aside) it was the government with the largest Dáil majority ever, viz the FF–Labour government of 1993–94, that left seats unfilled for the longest time ever, seventeen months. One reason offered then was that the government was very busy and did not need the ‘distraction’ of by-elections, but there is in fact no constitutional requirement that when a by-election takes place the entire cabinet has to decamp to the constituency in question for several weeks. Campaigning in by-elections is not what we pay ministers for!

A 90-day requirement for filling vacant seats seems reasonable. As Matt W says, such a recommendation was made by the Constitution Review Group in its 1996 Report (p. 49). While there is hardly going to be a referendum on this as a single issue, it could be part of a package of political reform constitutional amendments should one be devised. Short of this, the matter could certainly be regulated by legislation, and perhaps the opposition parties might make a commitment to such a measure, to be enacted early in their next term of government before the idea of having the power to postpone by-elections indefinitely becomes too tempting.

As to how, as opposed to when, to fill casual vacancies, one point to note is that the constitution says little about this, and does not explicitly prescribe by-elections. Article 16.7 says merely that the matter shall be regulated by law, subject to the other provisions of Article 16. Thus it might seem that the Oireachtas could change the law to replace by-elections by either the countback method or the list of substitutes method. The main barrier to this, as far as I can see, is Article 16.2.5, which states that ‘The members shall be elected on the system of proportional representation by means of the single transferable vote’. It is possible, though I’d guess unlikely, that the election of replacement deputies via the countback method or the substitutes’ list could be deemed compatible with this, in that the people might be seen to have conferred some kind of endorsement amounting to ‘election’ on the replacement deputy at the general election. Hence it may be that either of these could be introduced simply with a change in the law, without requiring constitutional change.

(Any challenge to by-elections on the ground that they do not amount to election by ‘proportional representation’ is unlikely to succeed, given that the election of the President is described in the same terms (Article 12.2.3). The state would presumably argue that the wording in the constitution was understood in 1937 to include a situation where only one candidate is to be elected, and that the drafters when they wrote the text, and the people when they endorsed it, were simply unaware that proportional representation, properly understood, necessarily entails the election of more than one candidate. If by-elections were deemed incompatible with the constitution because they are not held under PR then every presidential election to date would have to be deemed invalid.)

On countback, it makes obvious sense in Malta, where party identification is very strong. In a constituency where one party is in a majority and an MP of the minority party resigns or dies, the majority party would snap up the seat in any by-election. Another consequence of very high party ID in Malta is that running a multitude of candidates is a perfectly safe strategy for the parties, as they can be confident that virtually all vote transfers will remain within the party fold.

Not so in Ireland, where party ID is low and declining and where for many voters the candidate seems to count for as much as the party in determining their vote (Marsh et al, The Irish Voter, ch 8). Parties can miss out on a seat by nominating too many candidates. If countback was in operation, then as David F says the parties would have to nominate additional candidates, just in case. Maybe in the case of a larger party already running 3 or 4 candidates, this would be unproblematic, but for smaller parties (Labour in recent elections, Greens, SF, Independents) with their sights set on just 1 seat it would be an unpleasant dilemma. Run one candidate and if you’re lucky you will win a seat but will see it go to another party if your TD doesn’t last the full term; run two to avoid this risk and you may miss out on a seat in the first place (cf Labour’s travails in 1969 when over-optimistic central bodies insisted that all incumbents take a running mate). If the second candidate is a credible contender then the dilution of what would otherwise be a campaign focused around the main standard-bearer means that the seat could be forfeit; if the second candidate is a straw man or straw woman then, by definition, they are not the person the party sees as the second best potential candidate or would choose to run in a by-election should one arise.

In effect, it will be the weaker or weakest of the party’s general election candidates, the proverbial ‘sweeper’, into whose lap the seat automatically falls. At by-elections the parties get to choose afresh, and good candidates can emerge that way. As well as the ones mentioned by Eoin OM, there have been past party leaders elected through by-elections (Seán Lemass, William Norton, Brendan Corish, Seán MacBride, Des O’Malley), not to mention a number of others who went on to be ministers. None of these would have been elected by countback as they were not candidates in the previous general election.

Giving the leader of the party the right to decide whether there is a by-election in the circumstances where his/her party didn’t nominate any ‘spare’ candidates, as Liam W mentions for Tasmania, would avoid this dilemma – though how would this work in the case of an Independent TD, eg who would have had the power to call a by-election following the death of Tony Gregory? And this still does not get around the problem that any candidate elected via countback is by definition someone who was explicitly, and perhaps emphatically, rejected by the voters at the general election, not to mention the possibility that something negative is known about them now that wasn’t known at the time of the general election, eg that they were an Ansbacher account holder or whatever. The same would apply to the idea to give the seat to the general election runner-up.

At present a big problem with by-elections is that under current regulations the seat can be left unfilled indefinitely. But, as we’ve discussed, this can be put right by introducing a time limit for filling the vacancy; it doesn’t require the abolition of by-elections themselves.

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Posted 26 April 2010

Subject: How to fill casual vacancies in Dáil Éireann

Context: Attempts by the opposition in the Dáil to move the writ for by-elections in constituencies where seats have lain vacant for a considerable time

Title of lead post: Should by-elections be abolished? (MG, 26 April 10)


Should by-elections be abolished?

Leaving aside the broader issue of electoral reform (I’ve put some thoughts on this at http://www.tcd.ie/Political_Science/staff/michael_gallagher/IrishElectSys.php), the question of how to fill casual vacancies has been discussed. At present, by-elections are used to fill such vacancies, and this has been criticised as an anomalous way of filling vacancies arising under a PR system. There are indeed anomalies, but would any other method mark an improvement?

In both Malta and Tasmania the ‘countback’ method is employed: the retiring or deceased MP’s ballot papers from the last general election are examined, and a replacement candidate is elected from these papers using the alternative vote, so that the supporters of the departed candidate, and not all voters, get to decide by whom he or she should be replaced. (What happens if in the interim that candidate, defeated in the general election, has switched party allegiance or has, say, been revealed as having involvement in some dubious financial dealings, is unclear.) Some people have advocated this for Ireland.

Unfortunately, as far as I can see that method just wouldn’t work here. The reason is that in many cases parties will not have run any more candidates than they won seats, and so the countback method would end up ‘electing’ someone of a different party. For example, after Tony Gregory died in January 2009, while we can’t be certain who would have been elected from the 6,928 votes in his quota, we do know that it would not have been anyone from his own organisation, because he did not have a running mate in Dublin Central in 2007. The contest would have been among the 9 defeated candidates in the constituency, even though, quite possibly, none of them would have greatly enthused Gregory’s voters. The by-election held in June of that year did, though, result in the election of Maureen O’Sullivan, standing on behalf of Tony Gregory’s organisation.

Most Labour, and several Fine Gael, TDs elected in 2007 had no running mates, and quite a few FF TDs had no unsuccessful running mates – the existence of such unsuccessful running mates being essential if the seat is to remain within the political tendency of the departing TD. In this respect Ireland differs from Malta, where party allegiances among voters are very strong and where the parties nominate many more candidates than they win seats in each constituency, and (as I understand it) also from Tasmania. In both of those contexts parties are sure to have other candidates available to take part in the countback. In Ireland, though, the countback method would produce anomalies that no-one would advocate.

For example, in Dublin SW, if any of the 4 TDs (2 FF, 1 FG and 1 Labour) elected in 2007 were to resign, the contenders for their seat under the countback method would be a SF candidate, a Green, an independent, and a Socialist Party candidate. The last three of those attracted precisely 3,560 first preferences at the election, less than half a quota between them. The argument that one of those four candidates, and only one of those four candidates, should be entitled to any seat that falls vacant is difficult to sustain. Countback really does not seem to be a runner in Ireland.

The only feasible alternative to by-elections here is the ‘list of substitutes’ method employed at European Parliament elections. That has both advantages and disadvantages compared with by-elections, as outlined by Gary Murphy (DCU) in his evidence to the Committee on the Constitution on 10 February 2010.

It may be that, to paraphrase Winston Churchill on democracy, by-elections are the worst possible method of filling casual vacancies in this country, with the exception of all the others.

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Posted 23 April 2010

Subject: televised leaders’ debates at next Irish election

Context: interest in leaders’ debates generated by their prominence in then-current British election campaign and, in particular, the (short-term) boost in LibDem support that followed its leader’s performance

Title of lead post: How many leaders should take part in the leaders' debate at the next election (MG, 23 April 10)


How many leaders should take part in the leaders’ debate at the next election?

The novelty of the leaders’ debates at the 2010 British general election has focused attention on this aspect of election campaigns, especially given the sudden surge in Lib Dem support in mid-April after party leader Nick Clegg was widely adjudged the winner of the first debate. Not surprisingly, the Labour Party here has been quick out of the traps in demanding that at the next election, which after all could come at any time, the now traditional leaders’ debate should be a 3-way contest rather than being confined to the leaders of FF and FG as has always been the case so far. Labour is particularly keen to have Éamon Gilmore allowed into the ring with the other two leaders because the polls consistently show him as by some way the most highly regarded party leader, while there are question marks over both Brian Cowen and Enda Kenny’s performances, and Gilmore has proved himself a highly effective debater in the Dáil chamber.

It is easy to see the logic of Labour’s argument. Things were different in 2007. At that election, Labour won just 10% of the votes, not much more than a third of FG’s support and less than a quarter of FF’s. There was scarcely any doubt that the next government would be led by either Bertie Ahern or Enda Kenny. A head-to-head confrontation between Ahern and Kenny was clearly the most sensible format on that occasion.

As of April 2010, the shape of the party system looks very different. Polls vary a bit, but FG is generally in the mid-30s, FF in the mid-20s and Labour around or just below 20%. The justification for confining the leaders’ debate to the leaders of FF and FG in these circumstances is obviously much weaker, barring sizeable changes in party support before the next election – though of course such changes are quite possible if the 30th Dáil really does run until 2012.

It might be argued that only Kenny and Cowen – assuming they both remain the leaders of their parties for the remainder of this Dáil’s life – have a chance of being Taoiseach after the next election, but this argument is much weaker than before the 2007 election. True, it is unlikely that Gilmore will become Taoiseach, unless there is a really dramatic reverse in the relative strengths of FG and Labour, or unless Labour agrees a ‘rotating Taoiseach’ deal with FG under which he becomes Taoiseach first, neither of which is likely. But then, it could be argued that Cowen’s chances of becoming Taoiseach are even slimmer. FF will not be able to construct a government without either FG or Labour, and both parties have said unequivocally that they will not join FF in a coalition government. Despite public cynicism about the worth of a politician’s promise, in fact politicians do (usually, anyway) honour specific pledges in areas within their control, if only because of the reputational cost of not doing so.

In fact, while Labour will complain vociferously if its leader is excluded from the main debate and is confined to the minor match as in 2007, that outcome might be (even) better for the party than if Gilmore is invited into the main contest, for several reasons. First, the potential for him to gain from the exposure of a TV debate is far less than it was for Nick Clegg, precisely because he is already so well known and regarded whereas Clegg seems to have appeared from nowhere, perfectly formed, in the eyes of many British voters.

Second, evidence that such debates actually change voting intentions is mixed. The dramatic growth in Lib Dem support after Clegg’s debate performance, in the absence of any other plausible explanation for this, shows that they can matter, and the impact on TV viewers of Nixon’s 5 o’clock shadow and sweatiness in the 1960 US presidential debate is regularly trotted out as supporting evidence. Yet, as many people have pointed out, Michael Noonan seemed to outpoint Bertie Ahern in the 2002 leaders’ debate here without this making any discernable impact on FG’s support. While Ahern’s perceived victory over Kenny in the 2007 debate is widely cited as an explanation for FF’s late recovery in the polls then, and the explanation ‘it was the debate what won it’ is perhaps by now ineradicably implanted in the corpus of conventional wisdom, the detailed poll evidence really does not support this (see Michael Marsh’s analysis in How Ireland Voted 2007, pp. 120–1).

Third, absence can make a leader look better. Back in 1992 Albert Reynolds and John Bruton sent many listeners to sleep in a contest widely derided as a 0–0 draw where the real victor was Dick Spring, whose reputation grew stronger the longer the programme dragged on, and when election day came Spring’s own popularity was a major factor in Labour’s record 33 seats.

Fourth, were Gilmore included this might well heighten public awareness of the significant differences in policy, indeed in philosophy, between Labour and FG, especially when it comes to tackling the country’s economic difficulties, something that Brian Cowen should be able to highlight to the advantage of FF along the lines of ‘There is no alternative’.

And fifth, if Gilmore is excluded in a situation where he has a reasonable claim to be included, and if it seems that the underlying reason for this is that the leaders of FF and FG are simply afraid to face him, this could only work to his advantage. Labour could portray his exclusion as an inherent unfairness and the other two leaders would be repeatedly branded in the media as running scared of him.

The leaders’ debate before the next election, whatever its format, could provide a win–win situation for Labour.

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Further reading:

John Coakley and Michael Gallagher (eds), Politics in the Republic of Ireland, 5th edition (London: Routledge and PSAI Press, 2010). Chapters on all aspects of Irish politics

 

 

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Last updated 29 May, 2015 3:47 PM